Comcast Didn’t Kill Net Neutrality Last Week

A federal court of appeals said last Tuesday that the Federal Communications Commission wasn’t justified when it censured Comcast (s cscma) back in 2008 for blocking peer-to-peer files. At the time, I said the ruling could call into question the FCC’s ability to regulate several aspects of high-speed Internet service, including network neutrality, but after talking last week to people in D.C., it became clear that the consensus is in fact that regulations guaranteeing net neutrality will survive, and the FCC will likely begin a proceeding to solidify its authority by reclassifying Internet access.
The issue isn’t that Comcast sued the FCC, but that the FCC was on weak footing thanks to previous decisions it made starting in 2002. In that series of rulings, the agency decided that various forms of high-speed Internet access should not be classified as a transport service like a telephone line is, but rather as an information service, like Google or Facebook. In 2002, the FCC classified cable as an information service, and did the same with DSL in 2005, wireless broadband in 2007 and broadband over power lines in 2008.  The agency decided that Internet access was more than transport because ISPs also offered email accounts, portals, storage and other technologies on top of the transport layer.
In a GigaOM Pro report published late Friday (sub req’d), I lay out the options the FCC has before it from a regulatory perspective, and explain how we got here and where the agency will go next. I also outline how the ISPs will likely push for Congress to get involved, rather than see their Internet access reclassified as transport, because that reclassification gives the FCC more regulatory authority over their pipes.
So keep an eye on the FCC, because we’re likely to see it issue a Notice of Inquiry in the coming weeks on the topic of reclassifying high-speed Internet access (not broadband, which may encompass the services such as email and storage that led the FCC to classify the offering as an information service rather than transport in the first place). It will undoubtedly be followed by months of comments and inflammatory rhetoric about ISPs already being committed to net neutrality and arguments saying that the FCC wants to regulate “the Internet” (it’s trying to regulate access to it, not the web itself).
Once the FCC gets through the reclassification process, which could take at least six months, the net neutrality proceedings will stay open and the agency will likely take up the topic once its authority is firmly in place. Also, expect the FCC to follow any of its orders reclassifying Internet access as a transport service with later proceedings in which it says it won’t regulate certain aspects of high-speed Internet access, such as tariffs and peering agreements.
Amid this wonky debate, keep in mind that regulating communications transport is what the FCC was set up to oversee, and the current commission apparently intends to do it. It’s not going to be incredibly aggressive about it (otherwise it could issue a Declaratory Order saying that high-speed Internet access is a transport service without going through the comment period), but eventually net neutrality regulations that do contain provisions allowing ISPs to manage their networks will be passed. So Comcast didn’t kill net neutrality, but it did delay it for a while.
Read my full analysis on GigaOM Pro here.