On Tuesday, a federal appeals court ruled that the Federal Communications Commission currently lacks authority to regulate broadband services. The decision overturned the FCC's August 2008 ruling forcing cable giant Comcast to stop blocking the file sharing application BitTorrent. In Tuesday's ruling, Judge David Tatel said the FCC lacked "any statutorily mandated responsibility" to enforce network neutrality rules.
So, the government agency that is charged with overseeing the nation's communications infrastructure now has no authority to regulate broadband -- the 21st century's primary communications platform? While this would seem like a joke, sadly it is not. It is the result of failed Bush-era (de)regulatory policies that are once again failing to protect the public.
Here's how it works:
Under intense pressure from phone and cable companies, the Bush FCC chose to reclassify broadband as an "information service" instead of a "communications service" that provides strong regulatory oversight of traditional telephone services. Problem is, the "information service" classification so lacks the required regulatory authority, that the court just decided the FCC can't do anything. University of Michigan's Susan Crawford explains it in detail here.
The good news is that there is a simple solution. FCC Chairman Genachowski must "reclassify" broadband as a "communications service." The formidable phone and cable companies will fight tooth and nail to keep that from happening, but the Comcast case has forced Chairman Genachowski's hand: he must make the change. If not, the FCC has virtually no power to stop Comcast from blocking websites. The FCC has virtually no power to make policies to bring broadband to rural America, to promote competition, to protect consumer privacy or truth in billing. Bottom line: the agency has no power to enact the much-discussed National Broadband Plan, released just last month.
FCC Chairman Genachowski has been forced into a corner, and he will have to either stand up to the big companies and do the right thing, or watch his legacy at the FCC wash down the drain. Take action and tell him and the entire FCC to protect the Internet and protect the public.
Link to court decision here.
Follow Josh Silver on Twitter: www.twitter.com/representdotus