The Federal Communications Commission has, as expected, ruled against Comcast’s throttling policy. But the decision has raised further questions about the legality of both the concept and execution of a net neutrality policy.

The commissioners ruled that Comcast’s policy of slowing access to people using peer-to-peer software such as BitTorrent programs breached federal guidelines. Comcast now has 30 days to fess up the full details of how it does this, and explain exactly how it will change its ways by the end of the year.

The ruling was closer than expected, with FCC chairman Kevin Martin (pictured left) casting the deciding vote for a 3-2 margin. Each commissioner issued a detailed opinion statement, with dissenter Deborah Taylor Tate (pictured right)arguing that government’s role is to protect the overall consumer interest, saying throttling was necessary to keep fast access for the majority.

Fellow dissenter Robert McDowell made what may be a more important legal point: he argued that the FCC had never issued formal legal regulations on the subject before, so it was wrong to take action. That legal ambiguity is thought to be one of the reasons the FCC didn’t seriously consider issuing a fine, and it means a Comcast appeal is still a possibility.

The ruling effectively means the FCC’s position on net neutrality (the principle that internet firms should not distinguish between different types of traffic) is now a formal regulation. That should mean future offenders have less of a defense, though as the FCC rules haven’t gone through a formal legislative process, it’s still questionable whether any fines would be enforceable.

The case has reopened the debate on net neutrality. Some are still arguing the overriding political principle, which hinges on whether formal policies are needed to protect competition, or if they interfere with a free market. Others are concentrating on the practical details, particularly the question of whether or not internet carriers can manage finite bandwidth without discriminating against the heaviest users.

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Entry was posted on Saturday, August 2nd, 2008 at 12:39 pm under Legal.

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