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New Net Neutrality Battle Could Focus on Whether ISPs Are Common Carriers

Posted Feb 1, 2010 7:00 PM CDT
By Martha Neil

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As the Federal Communications Commission fights a seemingly uphill battle to force the nation's Internet service providers to abide by its so-called net neutrality standards, some observers are suggesting an alternative option.

Many now anticipate that the U.S. Court of Appeals for the District of Columbia Circuit will rule against the FCC in its current federal appeals court legal battle with Comcast Corp. over the company's alleged unequal treatment of certain bandwidth-hogging peer-to-peer applications. But the FCC might still have the power to enforce its net neutrality rules if it classifies Comcast and other Internet service providers as common carriers under the federal Telecommunications Act, reports the Telecom blog of Ars Technica.

A detailed proposal for doing so, the Telecom blog notes, has been written up by Public Knowledge, a Washington D.C.-based public interest group focused on intellectual property and technology policy. (In an earlier PK blog post, the author of the proposal, Harold Feld, describes the FCC's presentation in a recent D.C. Circuit oral argument against Comcast as "an unmitigated disaster.")

Of course, PK's suggestion, if adopted, probably will result in litigation, too, Telecom notes in a lengthy article discussing the intricacies of the situation. But, once again, if opponents of net neutrality prevail, that could potentially point the way toward new legislation requiring ISPs to treat all users of its bandwidth equally. How, exactly, this legislation might be written is anyone's guess.

"The point? There's still time for everyone to consider the possibility that the FCC's action regarding Comcast was the simplest, most conservative response to Internet ISP discrimination," the Ars Technica blog post concludes. "It's also possible that the legal, political, and ideological campaign to squash it will only spawn ever more radical solutions to the problem."

Earlier coverage:

ABAJournal.com: "Comcast Scores Against FCC in Court Battle Over Net Neutrality"

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