"The FCC is not having a one-night stand with Net neutrality,” said FCC Commissioner Michael Copps
back in 2008, “ but an affair of the heart and commitment for life.”
Today’s ruling by the U.S. Court of Appeals for the District of Columbia
may amount to a trial separation for the lovely couple.
The court delivered a painful kick in the shins to the FCC today, ruling that the agency overstepped its boundaries in 2008 by imposing an enforcement action against Comcast
, alleging the cable company’s broadband network management practices to be in violation of the FCC's policy principles. Today’s ruling vacates the enforcement, which had called on Comcast to be more transparent in its network management practices.
While today’s decision may raise
more questions than
it delivers answers, it may be useful to consider some of the short and medium term implications.
The court’s decision is more about the FCC’s authority than on “Net Neutrality” per se
My number one prediction? The mainstream media will get it wrong. They will suggest that this is a ruling against Net Neutrality. To be clear, today’s ruling is about the role and the regulatory boundaries of the FCC—not necessarily a ruling against Net Neutrality or the concept of an Open Internet. The FCC in a statement said the agency remains "committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans."
This decision will be challenged, but that could take years. In the meantime, look for the service providers to begin “testing the waters.”
I’m no lawyer, but as a more than casual industry observer, I can predict with some certainty that this is not a definitive ruling. It will more than likely end up in the Supreme Court—but don’t make any plans yet. Broadband is now classified by the FCC as a “lightly regulated information service,” and as such it skirts many the regulations imposed on traditional Telecom services with regards to open networks. Some suggest that the FCC, as a rulemaking body, can simply reclassify broadband, and impose tougher regulation.
Whatever the final disposition is, time is on the side of the service providers. The glacial speed of change in DC means that in the upcoming months (and even years), Comcast and other service providers—granted a temporary reprieve—will likely begin testing the waters, and recommence traffic prioritization and other various and sundry network management antics.
What about OTT?
An affirmative decision on Net neutrality has always been a cornerstone of the future of unmanaged over-the-top (OTT) video. Today’s ruling throws a monkey wrench in those works. Until the next challenge, Comcast (and any service provider for that matter), reserves the right to prioritize and manage traffic streams as they see fit. “Sure we’ll get your YouTube video—just not all at once.”
And oh yeah, what about the future of the US National Broadband Policy?
Here’s hoping the FCC is reunited with its soul-mate.