Feeds

US court rules FCC can't ban BitTorrent busting

Comcast order vacated

Intelligent flash storage arrays

A US federal appeals court has ruled that the Federal Communications Commission does not have the legal power to "regulate an Internet service provider's network management practices."

On Wednesday, a three-judge panel with the US Court of Appeals for the District of Columbia Circuit unanimously vacated the 2008 FCC order that famously barred cable giant Comcast from interfering with its users' peer-to-peer traffic.

In 2007, Comcast was caught snipping BitTorrent connections and other P2P traffic, and in August 2008, the FCC sanctioned the ISP for violating the "net neutrality" principles it laid down in 2005. But with today's decision, the court held that the Commission's “statutorily mandated responsibilities” do not allow for such an order.

The US Communications Act of 1934 gives the FCC the power to regulate common-carrier services - including "landline telephony, radio transmissions, cable services, and broadcast television" - but according to the court, it does not cover cable internet service. The FCC had argued that section 4 (i) of the Act supported its Comcast order because it authorizes the Commission to “perform any and all acts, make such rules and regulations, and issue such orders, inconsistent with this chapter, as may be necessary in the execution of its functions." But the court says otherwise.

"The Commission may exercise this 'ancillary' authority only if it demonstrates that its action - here barring Comcast from interfering with its customers’ use of peer-to-peer networking applications - is 'reasonably ancillary to the...effective performance of its statutorily mandated responsibilities,'" Judge David Tate writes as part of his 36-page decision. "The Commission has failed to make that showing."

The FCC based its authority on several Congressional "statements of policy." Existing case law, Tates continues, shows that such policy statements do not create "statutorily mandated responsibilities."

The decision is expected to move to the Supreme Court, but it's at least a temporary blow to FCC Chairman Julius Genachowski, who has proposed new net-neutrality rules that would prohibit internet service providers from discriminating against particular content or applications. The FCC's Comcast order was made under Genachowski's predecessor, George W. Bush appointee Kevin Martin.

Genachowski wants to create formal rules from the FCC's 2005 policy statement, while adding two extras. The four existing principles - taken together - say that ISPs cannot prevent netizens from accessing lawful internet content, applications, or services of their choice or attaching non-harmful devices to the network. A fifth rule would prohibit discrimination, and a sixth would require ISPs to be "transparent" about their network management practices.

In the wake of the appeals court's decision, the public advocate Center for Democracy & Technology called on Congress and the FCC to clarify the Commission's role vis-à-vis end-user internet services. "Either the FCC or Congress is going to have to go back to the drawing board and reconsider the authority that the agency can exercise over 'last mile' providers of Internet access," reads a statement from Leslie Harris, president and CEO of the Center for Democracy & Technology. "Otherwise, the legal landscape will remain murky and ultimately fail to protect open and unfettered Internet access."

In early 2007, independent networking guru Robb Topolski first noticed that Comcast was preventing users from "seeding" a portion of their P2P files on BitTorrent, and when word of his tests reached the tech press that August, Comcast denied the practice. But in October, the Associated Press confirmed that the ISP was using reset flags to break P2P connections.

Comcast always claimed that it was "managing" traffic - not blocking it. But before the FCC's order came down, it committed to new network management techniques that would be "protocol agnostic." And it obeyed the order, indeed ending its P2P blocking and disclosing details on how it worked - but before doing so, it filed suit with the US Court of Appeals, arguing that the order was unlawful.

In December, Comcast agreed to pay $16m to settle a class action suit brought against the company over its BitTorrent busting, claiming that the practice violated federal computer-fraud laws and user contracts. This, we would argue, was Comcast's biggest crime: it was fiddling with net connections without telling users it was doing so. But the point was lost amidst the ongoing religious war over net neutrality. ®

Secure remote control for conventional and virtual desktops

More from The Register

next story
Same old iPad? NO. The new 'soft SIMs' are BIG NEWS
AppleSIM 'ware to allow quick switch of carriers
Brits: Google, can you scrape 60k pages from web, pleeease
Hey, c'mon Choc Factory, it's our 'right to be forgotten'
Of COURSE Stephen Elop's to blame for Nokia woes, says author
'Google did have some unique propositions for Nokia'
FCC, Google cast eye over millimetre wireless
The smaller the wave, the bigger 5G's chances of success
It's even GRIMMER up North after MEGA SKY BROADBAND OUTAGE
By 'eck! Eccles cake production thrown into jeopardy
Mobile coverage on trains really is pants
You thought it was just *insert your provider here*, but now we have numbers
Don't mess with Texas ('cos it's getting Google Fiber and you're not)
A bit late, but company says 1Gbps Austin network almost ready to compete with AT&T
prev story

Whitepapers

Forging a new future with identity relationship management
Learn about ForgeRock's next generation IRM platform and how it is designed to empower CEOS's and enterprises to engage with consumers.
Why cloud backup?
Combining the latest advancements in disk-based backup with secure, integrated, cloud technologies offer organizations fast and assured recovery of their critical enterprise data.
Win a year’s supply of chocolate
There is no techie angle to this competition so we're not going to pretend there is, but everyone loves chocolate so who cares.
High Performance for All
While HPC is not new, it has traditionally been seen as a specialist area – is it now geared up to meet more mainstream requirements?
Intelligent flash storage arrays
Tegile Intelligent Storage Arrays with IntelliFlash helps IT boost storage utilization and effciency while delivering unmatched storage savings and performance.