Journalism professor Andrew Lih weighs in on appeals court ruling on network neutrality

By Andrew Lih
Journalism Professor

Originally posted on Lih's personal blog.

Today marked a signifcant setback for the network neutrality movement. The dream of keeping Internet traffic unshaped, unprioritized and unfettered was dealt a blow by a decision by the US Court of Appeals.

The panel of three judges unanimously invalidated the FCC’s authority to mandate that Internet traffic has to be treated equally. This was originally brought about by Comcast’s throttling of users’ BitTorrent traffic in 2007, which led to a 2008 FCC order to the cable provider to stop the practice. Since then, the FCC has been on the winning side of court cases maintaining the status quo and the agency has enforced “network neutrality” across Internet service providers.

Today’s ruling changes things, but it’s not as bad as one might think.

Though it started with BitTorrent, peer to peer file sharing is the least interesting of the cases out there. Instead, follow the money.

The idea of Comcast, AT&T or Verizon arbitrarily prioritizing packets by traffic shaping has been the scary scneario for a number of Internet-age content providers who have profits in mind, and hope to challenge powerful traditional telecom and entertainment companies.

Of particular interest — providers of Voice over IP, such as Skype, and those who serve up video that directly challenge the role of cable TV providers in delivering video content (ie. Netflix, Hulu and others). Consider also how much Google is getting into the both of those spaces with YouTube and Google Voice, and how much Apple depends on speedy download of video content for iPad and other devices.

Ben Scott, policy director of Free Press, observed that this was not a lasting victory for ISPs.

With perhaps the best quote of the day, he said, “Comcast swung an ax at the FCC to protest the BitTorrent order… And they sliced right through the FCC’s arm and plunged the ax into their own back.”

That’s because there are some possible easy remedies for the FCC. The agency can reclassify broadband as a telecom service that deserves heavier regulation, which would change things rather quickly but not without controversy.

Or on a longer time scale, Congress could act to give the FCC this exact authority to regulate broadband. An FCC statement released today said, “the court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end.”

It’s clear the FCC folks are sticking with their stance, and confident of a solution.

Until then, we should expect to see bandwidth shaping experiments from DSL and cable providers. But this has always been a huge risk in upsetting customers. In an age of Twitter and Facebook, we’ll quickly see people diagnose, triangulate on and react to these types of efforts.

Caveat Comcast, don’t get too comfortable.