Comcast Prevails in BitTorrent Throttling Case

Comcast Prevails in BitTorrent Throttling Case

Had appealed earlier decision by the FCC sanctioning the ISP for singling out BitTorrent traffic as part of its network traffic management plan.

The United States Court of Appeals for the District of Columbia Circuit has sided with Comcast in the long-running dispute over the ISP’s ability to manage its network traffic and the FCC’s principles of “net neutrality.”

First discovered back in late 2007, Comcast told the FCC that throttling BitTorrent traffic was a justifiable way to keep network traffic flowing for everyone.

Critics argued that the ISP was violating the principle of “net neutrality,” that all Internet traffic should be treated equally regardless of consumption levels, and hinted that the company has ulterior motives in hindering the downloading of video content since the practice competes with its very own rapidly expanding cable TV business.

The FCC would later side with critics and rule against Comcast, ordering it to cease BitTorrent throttling, provide details to the commission on the extent and manner in which the practice has been used, and to disclose to consumers details on future plans for managing its network going forward.

“Although Comcast asserts that its conduct is necessary to ease network congestion, we conclude that the company’s discriminatory and arbitrary practice unduly squelches the dynamic benefits of an open and accessible Internet and does not constitute reasonable network management,” it said at the time.

However, Comcast soon appealed that decision with the US Court of Appeals for the District of Columbia Circuit in order “to protect its legal rights “and to challenge the basis on which the commission found that Comcast violated federal policy in the absence of pre-existing legally enforceable standards or rules.”

It still complied with the FCC’s ruling, bringing BitTorrent throttling to an end last January and targeting heavy users instead, but challenged the FCC’s authority nonetheless.

Today, being that Congress has never given the FCC authority to regulate the Internet let alone network management practices, the court sided with Comcast and found that the FCC lacked the “ancillary” authority relevant to the “effective performance of its statutorily mandated responsibilities.”

From the ruling:

The Commission may exercise this ‘ancillary’ authority only if it demonstrates that its action—here barring Comcast from interfering with its customers’ use of peer-to-peer networking applications—is ‘reasonably ancillary to the . . . effective performance of its statutorily mandated responsibilities.’

What this means is that ISPs now essentially have free reign over their networks, and the ruling puts to rest attempts by the FCC to “safeguard the free and open Internet” as part of the “net neutrality” rules it proposed last September.

Worse still, with Comcast’s purchase of NBC Universal last December we are seeing broadband providers merge with content providers, and the transition to digital media distribution, ISPs are now free to throttle competing applications and services or block them altogether.

Now it’s up to Congress to ensure the principles of “net neutrality” in clear cut legislation. Let’s hope they act sooner rather than later.

“We are gratified by the Court’s decision today to vacate the previous FCC’s order. Our primary goal was always to clear our name and reputation,” said Sena Fitzmaurice, Comcast’s Vice President of Government Communications, about the decision. “We have always been focused on serving our customers and delivering the quality open-Internet experience consumers want. Comcast remains committed to the FCC’s existing open Internet principles, and we will continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant Internet.”

If it thinks the ruling “cleared” its name and reputation it’s sadly mistaken.

Stay tuned.

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FCC Statement

“The FCC is firmly committed to promoting an open Internet and to policies that will bring the
enormous benefits of broadband to all Americans. It will rest these policies — all of which will be
designed to foster innovation and investment while protecting and empowering consumers — on
a solid legal foundation.

“Today’s court decision invalidated the prior Commission’s approach to preserving an open
Internet. But the Court in no way disagreed with the importance of preserving a free and open
Internet; nor did it close the door to other methods for achieving this important end.”