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Who Regulates the Internet Gatekeepers?
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In an opinion that could have far reaching implications for how web traffic and marketplace competition will be managed, an appeals court in Washington D.C. ruled that the Federal Communications Commission did not have the authority to regulate the internet. The decision may place the agency’s ambitious plan of providing at least 100 million people with robust and affordable high speed internet access in jeopardy and represents a big win for internet service providers.
At issue in this case was whether or not the FCC could force Comcast to stop either delaying or selectively blocking traffic from peer to peer file sharing services that allow users to swap huge media files, including movies and music. By invoking powers under the Communications Act of 1934, the FCC contended that it had the authority to order Comcast to discontinue its practice of targeting users of file sharing sites. Comcast throttling practices, the FCC said, threatened the open nature of the internet. In some areas up to three-quarters of all file sharing connections were blocked or delayed, according to the Commission.
By targeting cutting-edge peer-to-peer technologies, critics said it violated the principles of net neutrality, which discourage service providers from interfering or discriminating against Internet users on the basis of equipment, communication or content. ISPs, such as Verizon, AT&T, and Comcast could also gain an unfair advantage in the marketplace if they decide to slow down or block access to sites offering competing services such as Video on-Demand through sites like Hulu or YouTube.
Groups such as the Future of Music Coalition, an organization advocating on behalf of musicians, believes a web that isn’t net neutral will end up hurting independent artists and impede the development of the internet. “Artists need access to this platform. It’s how they relate to their fans,” said Casey Rae-Hunter, FMC Communications Director in a recent interview. “We knew if the platform was open we would see innovation.” Hunter points to the success of indie rock bands like Okay Go, who have used the web to cultivate a loyal fan base. Music sites like Pandora are examples of what can occur when artists and innovators are given the chance to compete on a level playing field.
Without the reassurance that a robust regulator is preventing service providers from steering or otherwise interfering with web traffic, people like Hunter fear the Internet may tend towards favoring major label artists and ultimately marginalizing indie acts.
“(Maybe) Lady Gaga could cut a deal with an ISP but I can’t,” said Hunter, also a working musician.
For its part, Comcast said only a tiny percentage of all users are affected by its effort to manage network congestion and that file sharing sites tended to use up a disproportionate amount of bandwidth. The media giant contended that doing so was in the interest of most users since it prevents the heaviest bandwidth users from affecting overall network performance. It also vehemently denies blocking P2P traffic or discriminating on the basis of online content.
Critics of the FCC order also believe that matters like this are better left to the free market. “The amounts at stake aren’t trivial, with tens of billions invested each year in Internet expansion,” says James Gattuso of the Heritage Foundation, a conservative think tank that favors less regulation. “Even worse, investment in expanding the Internet will be chilled, as FCC control of network management makes investment less inviting.”
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