With the current Federal Communications Commission saying it had the power to preserve Internet openness despite a court ruling Tuesday in the BitTorrent case that calls at least some of that authority into question, the commission was getting backing from network neutrality fans on the Hill and elsewhere in Washington.
The FCC will likely need clear authority if it is to help implement the national broadband plan, and certainly in its effort to codify and expand the network neutrality guidelines it used to find Comcast wanting in its network management of BitTorrent.
"Clearly, the Court's decision must not be the final word on this vitally important matter, and I intend to work vigorously to ensure an open Internet for generations to come," said Rep. Ed Markey (D-Mass.), who has proposed network neutrality legislation.
Markey said what the "court had done was [thrown] out the previous Commission's shoddy legal theories," though the court also threw out the justifications provided for those theories by the current commission's attorneys. "In light of the Court's ruling," he said. "I encourage the current Commission to take any actions necessary to ensure that consumers and competition are protected on the Internet. It is important to note that the Court neither called into question the wisdom of network neutrality policies nor did it exonerate Comcast for its unreasonable interference with lawful consumer Internet use."
The court confined its decision to the issue of jurisdiction over network managament practices, a jurisdiction it said the FCC failed to justify under broad ancillary authority.
"We are now at a crucial crossroads - do we preserve the historic openness of the Internet, which has made it the most successful communications medium of all time, or do we enable Comcast and other communications colossi to erect fast lanes and slow lanes that stifle the ingenuity and investment that have characterized the Internet since its inception?"
Free Press, which was one of those taking issue with Comcast's impeding of BitTorrent uploads, said the court decision has forced the FCC into an "existential crisis" that leaves it unable to protect consumers. In a statement, Free Press research director Derek Turner said that while this FCC did not create the existential crisis, it now has no choice but to face these tough jurisdictional questions head on, and do what is necessary to protect consumers and promote competition."
Free Press has suggested that if the court did vacate the BitTorrent decision, the commission might have to reclassify some part of Internet access as a Title II telecommunications service subject to mandatory access regs, rather than a more lightly-regulated information service--its current Title I classification--that does not subject it to access or rate regulations.
Sen. John Kerry (D-Mass.), who chairs the Senate Communications Subcommittee, said he was not advocating for FCC to reclassify broadband service, but he did almost everything but.
"I absolutely believe they maintain that legal authority and it would be entirely consistent with the history of communications law in our country if they did," Kerry said in a statement. In fact, in cases involving FCC classification of services, the Supreme Court has always deferred to the agency. It is likely to continue doing so if the agency reversed and provided a strong rationale for updating the Bush era classification of broadband service."
And if the FCC can't find a way to reclassify it, Kerry suggested he would help come up with some other way to make its authority over the Internet clear. "In the long run, we may need a new legal and regulatory framework for broadband, especially if reclassifying broadband as a telecommunications service proves too difficult to administer," he said. "I am willing to work with all interested parties on the construction of that framework."