Court overturns FCC’s Comcast P2P ruling

It’s hard to underestimate the impact that the FCC’s wrist-slap of Comcast for its peer-to-peer traffic shaping had across the telecom industry. Which would make today’s overturning of the commission’s authority to do so even more significant – if it wasn’t more likely the beginning of the story rather than the end of it.

At stake: the ability of telecom service providers to manage traffic on their networks and the role of the government in overseeing it. So-called net neutrality was going to be a major issue in 2010 regardless; its tenants sit at the center of the FCC’s National Broadband Plan and the overhaul of the telecom regulatory environment expected to spring from it. Today’s court ruling only puts the issue back on the front burner.

As a result of the FCC’s original Comcast ruling, service providers and their vendors – especially the deep packet inspection (DPI) and policy server vendors whose products are typically used to manage IP traffic – have been wrestling with exactly how to balance the need to keep traffic spikes from downing their networks with the requirement to do so in an above-board and non-discriminatory manner. Such issues have long been on the board for wireline ISPs, but wireless operators have even more dire needs, as data usage has exploded on mobile networks in the past year.

Connected Planet covered Comcast’s P2P story in great detail last winter. In short, the MSO put a system in place to manage P2P traffic on its network, specifically targeting particular protocols such as BitTorrent. The FCC called the process discriminatory, slapping Comcast’s wrist in the process. Comcast subsequently changed how it managed its network but called into question whether the FCC had the authority to do what it did.

Today’s ruling from the U.S. Court of Appeals for the District of Columbia (PDF ) found it did not, largely because broadband service, unlike standard telephone service, is legally defined as a more lightly-regulated “information service.” A concept like net neutrality is a policy principle, not a law or formal regulation, and thus cannot be enforced by the FCC, the court said.

Those distinctions and the need to clarify them are in large part why the FCC forwarded its National Broadband Plan, a set of principles it is aiming to work with Congress to codify into law.

Perhaps most interesting is what comes next as a result of today’s ruling. Among the FCC’s options are to appeal the ruling to the Supreme Court; go to Congress and ask for broader authority or specific legislation to enact formal net neutrality rules; or pursue a path to reclassify broadband service to bring it under its purview.

In a statement, the FCC said it remains "firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans" and "will rest these policies ... on a solid legal foundation."

In its own statement, Comcast said it was “gratified” with the ruling, saying its "primary goal was always to clear our name and reputation. Comcast remains committed to the FCC’s existing open Internet principles, and we will continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant Internet.”