F.C.C. Rules for Broadband Fairness Set Aside by Court 
By EDWARD WYATT
Published: April 6, 2010

WASHINGTON A federal appeals court on Tuesday dealt a sharp blow to the efforts of the Federal Communications Commission to set the rules of the road for the Internet, ruling that the agency lacks the authority to require broadband providers to give equal treatment to all Internet traffic flowing over their networks.

The decision, by the United States Court of Appeals for the District of Columbia Circuit, specifically concerned the efforts of Comcast, the nations largest cable provider, to slow down customers access to a service called BitTorrent, which is used to exchange large video files, most often pirated copies of movies.

After Comcasts blocking was exposed, the F.C.C. told Comcast to stop discriminating against BitTorrent traffic and in 2008 issued broader rules for the industry regarding net neutrality, the principle that all Internet content should be treated equally by network providers. Comcast challenged the F.C.C.s authority to issue such rules and argued that its throttling of BitTorrent was necessary to ensure that a few customers did not unfairly hog the capacity of the network, slowing down Internet access for all of its customers.

But Tuesdays court ruling has far larger implications than just the Comcast case.

The ruling would allow Comcast and other Internet service providers to restrict consumers ability to access certain kinds of Internet content, such as video sites like Hulu.com or Googles YouTube service, or charge certain heavy users of their networks more money for access.

Google, Microsoft and other big producers of Web content have argued that such controls or pricing policies would thwart innovation and customer choice.

Consumer advocates said the ruling, one of several that have challenged the F.C.C.s regulatory reach, could also undermine all of the F.C.C.s efforts to regulate Internet service providers and establish its authority over the Internet, including its recently released national broadband plan.

This decision destroys the F.C.C.s authority to build broadband policy on the legal theory established by the Bush administration, said Ben Scott, the policy director for Free Press, a nonprofit organization that advocates broad media ownership and access.

The decision could reinvigorate dormant efforts in Congress to pass a federal law specifically governing net neutrality, a principle generally supported by the Obama administration.

While the decision is a victory for Comcast, it also has the potential to affect the companys pending acquisition of a majority stake in NBC Universal.

Members of Congress have expressed concern that the acquisition could give Comcast the power to favor the content of its own cable and broadcast channels over those of competitors, something that Comcast has said it does not intend to do. Now, members of Congress could also fret that Comcast will also block or slow down customers access to the Web sites of competing television and telecommunications companies.

In a statement, the F.C.C. said it remained firmly committed to promoting an open Internet. While the court decision invalidated its current approach to that goal, the agency said, the court in no way disagreed with the importance of providing a free and open Internet, nor did it close the door to other methods for achieving this important end.