A D.C. federal court's ruling to throw out the FCC's decision to punish Comcast over its network management of peer-to-peer broadband traffic has begun to draw comment from the industry.
While the FCC was still pondering the decision and Comcast had yet to release a statement, Thomas Lenard, president of the Technology Policy Institute, saw it as a victory with a catch.
The Institute's supporters include Comcast, Time Warner Cable, and the National Cable & Telecommunications Association, but also Google and Cisco, according to an online list of its backers.
"I am pleased to see the D.C. Circuit Court came to the correct decision in this case. From a policy perspective, the type of 'network neutrality' regulation at issue is not in the best interest of consumers and the Court's decision indicates that the FCC does not have the authority to impose such regulation," he said in a statement.
The catch: "I am concerned, however, that the Commission may now attempt to reclassify broadband as a telecommunications service, subjecting it to traditional public utility-type regulation," he said. "In my opinion, this would be a grave mistake that would undermine the goals of the recently-released National Broadband Plan."
FCC Chairman Julius Genachowski has said he believes the FCC has the authority to enforce network openness principles, which could mean reclassifying broadband service to provide a more direct link to that authority.
The D.C. court cited a lack of direct, delegated authority from Congress as the reason why it vacated the BitTorrent decision Tuesday.
Free market think tank, The Free State Foundation, said the decision meant the FCC should "suspend" work on its plan to codify and expand its network neutrality guidelines, which it concluded Comcast had violated in impeding peer-to-peer traffic on its network. But that could be tough to do now that the court has called its network management authority into question.
"If the agency believes some form of Internet regulation is desirable, it should work with Congress to fashion a new statutory framework," said Free State Foundation President Randolph May. "Indeed, the court's decision ought to provide an impetus for Congress to begin a rewrite of the Communications Act which ties the Commission's regulatory activity over broadband explicitly to evidentiary showings of abuse of substantial market power and demonstrable consumer harm."
Public knowledge President Gigi Sohn urged immediate action to "bring Internet access service back under some common carrier regulation similar to that used for decades." She said that in the wake of the decision "there are no protections in the law for consumers broadband services. Companies selling Internet access are free to play favorites with content on their networks, to throttle certain applications or simply to block others."
Media Access Project did not echo calls for reclassification, at least explicitly, but did say it was disappointed in the decision. "Media Access Project continues to maintain that the Commission must have the authority to protect all Internet users against harmful and anticompetitive conduct by Internet service providers," said VP Parul Desai. "We will continue to work with the Commission to ensure that it has the ability to protect the rights of Internet users to access lawful content and services of their choice, without interference from the ISP."
