US court rules FCC can't ban BitTorrent busting
Comcast order vacated
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. ®
in a perfect world
When these corporations want to play by their own moral handbook as far as how the internet should be provided then if the time ever comes for them to need anything from the government I would say deny it.
If you look at the banking industry that we had that fell in the toliet, a large part of that still slaps you in the face today when you walk into your local bank and see the large community reinvestment act plastic signs. Our government forced banks to make loans to people that could not afford it.
Now in this instance, government; on behalf of the people tried to force these isps to be neutral. If I recall correctly, if an ISP is fiddling with it's traffic the ISP is then accountable for the traffic since it's picking and choosing what it wants.
Joe Shmoe doesn't seem to understand what net neutrality means. I hear the locals on talk radio railing against it but you can be assured if Comcast and Verizion and the other corporate thugs with lobbyists don't like something then it's probably something we need.
I can't see any of this helping UUnet or Comcast get any new peering deals. Comcast is already starting to gain about as much credibility as Cogent in providing connectivity to large business.
What's going to happen when Verizon, Comcast, and the others come to the tax payers for bailouts. Will they be deemed to big too fail? I think so.
>vote with your buck...
Good idea: if all the bandwidth hoggers got off my ISP the performance would go way up...
Obviously blocking traffic and NOT telling your customers is poor, bordering on criminal behaviour, but ISPS should be able to compete on which services they offer, and no peer to peer etc so the links and contention ratios are superior and so I'm not subsidising the pirates would be a selling point to me.
Live free, or die a socialist.
I live free, /and/ will die a socialist. It's grand. As to the "world view of a typical septic," they wouldn't have their freedom if my countrymen didn't die defending it! (And that of many other now socialist countries as well.)
Insert other truths here that enrage the "typical septic." (Assuming here "typical septic" means "republican.")
With all this "people dying in mining accidents, not due to worker negligence but instead due to mining company refusing to meet safety standards, (instead feeling paying the fine if anyone died was cheaper,)" I would love to get the opinions of these "typical septics" on things like unions, socialism etc. Funny how they think they are such terrible things; I guess people's lives aren't worth interrupting the profit motive.
I hold union men who died trying to earn a better life for themselves up even higher than those who died on the battlefield. As I am a base rat born and raised; that should say something. I hold soldiers in some pretty high esteem as well.
Anyways, what was the topic again? I seem to have meandered off course a little…