Police Force

The Internet needs a good beat cop.

And most good beat cops rarely pull their weapon. This month, in a major ruling affecting who governs the Internet, the U.S. Court of Appeals said that the FCC lacked authority to stop Comcast from blocking traffic to a customer. In doing so, the court took away the FCC’s gun and gave it flashlight. Comcast had argued that the FCC had not established the authority to crack down on its management of what the company saw as a bandwidth-hogging, peer-to-peer file sharing via BitTorrrent. The court agreed.

Theoretically, cable operators can do whatever they want to do now to manage their networks. If companies are allowed to restrict content sent over the Internet, free-speech advocates argue, it would “undermine the open architecture that has transformed the Web into a democratic force in society,” says the Free Press, a non-profit group. Comcast or other large media companies could allow its movies to download more quickly than a rival’s movie service.

The ruling seems to undermine “net neutrality,” which means that all service providers and sites should be subject to the same rules online.

But the FCC said its Internet authority is still intact - somewhere - and there’s reason to believe it will act quickly to prove that, if tested.

NCTA president Kyle McSlarrow agrees, at least in principle. He said that in the real world, he doesn’t see that having much of an effect: “We made commitments that we support the FCC’s Internet policy statement.” Cable operators, McSlarrow said, are unlikely to do anything that will harm the Internet experience for customers. Good intentions, no doubt, but that could be said for any competitive ISP.

Rosemary Harold, media adviser to FCC commissioner Robert McDowell, argues the marketplace has its own built-in police - users who will scream at the first sign of tampering.

Perhaps the most discussed alternative - short of Congress passing a new law - is reclassifying broadband as a Title II telecommunications service, which is subject to stricter common-carrier access mandates.

Cable operators argue that strict nondiscrimination principles would be a disincentive to investment.

That may be true, but so is regulatory uncertainty. Right now, the cop on the beat just needs to know the true limits of his authority.