Skip to main content

FCC: BitTorrent Decision Could Hinder Broadband Rollout

FCC General Counsel Austin Schlick says the federal appeals court decision to vacate its BitTorrent order could affect a host of recommendations in the national broadband plan, including help for schools, the disabled and cybersecurity.

The decision, on which Schlick argued the losing side, held that the FCC had not established the statutory authority for finding Comcast in violation of its Internet openness guidelines.

The list, which Schlick outlined in a blog post, is one guaranteed to make finding new underpinnings for that authority appear to be something of a national broadband priority.

The recommendations at risk from the decision, he said, in what amounted to a laundry list of national purposes, were "accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public safety communications; cybersecurity; consumer protection, including transparency and disclosure; and consumer privacy."

Broadcasters concerned about having to give up spectrum will still have to be concerned, however, as will cable operators bucking a one-size-fits all universal set-top. Schlick said among the broadband plan recommendations for which there is "express statutory delegation of authority" are "making spectrum available for broadband uses," and "unleashing competition and innovation in smart video devices."

The FCC has not yet said how it will respond to the court decision, but among its options are reclassifying broadband under a more regulatory common carrier regime, seeking other statutory hooks in the Communications Act to peg its authority to, appealing the decision (of a three-judge panel) to the full court, appealing it directly to the Supreme Court, or turning to Congress for a bill spelling out its authority.