In 2008 Comcast was ordered to stop interfering with BitTorrent traffic generated by its customers. In addition, the company had to disclose all of its “network management” practices.
The Comcast case was the first to ignite a broad discussion about Net Neutrality and the setup for FCC’s Open Internet Order which was released two years later.
The Open Internet Order prescribes that all traffic on the Internet should be treated equally, but allows ISPs to slow down or block traffic if it’s considered to be “reasonable network management.” For many Net Neutrality activists the rules didn’t go far enough, but it was something.
Today the Open Internet Order was decimated by the DC Circuit Court of Appeals, which ruled against the commission. The Court states that the FCC does not have the power to regulate how ISPs manage traffic on their networks.
“Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.”
The Court didn’t throw out the entire Open Internet Order, and clarified that ISPs still have to disclose what kind of actions they take when “managing” traffic on their networks.
The ruling leaves the FCC with two options. It could appeal at the Supreme Court or it could ask Congress to give it the powers it wants and/or needs. For now, however, ISPs are free to discriminate between different traffic types, and block certain sites or content.
This could mean, for example, that certain types of traffic get priority over others, or that certain sites or services could be downgraded or blocked.
The reasoning of the D.C. Court of Appeals is similar to an order it issued in 2010. At the time it overruled the FCC’s decision to sanction Comcast for unfair treatment of BitTorrent users, arguing that the commission doesn’t have the authority to enforce net neutrality.
In a response to the bad news FCC Chairman Thomas Wheeler said that his organization is considering an appeal.
“We will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans,” Wheeler noted.
Many Open Internet advocates are unhappy with today’s decision as well.
“We’re disappointed that the court came to this conclusion. Its ruling means that Internet users will be pitted against the biggest phone and cable companies — and in the absence of any oversight, these companies can now block and discriminate against their customers’ communications at will,” Free Press President and CEO Craig Aaron notes.
“The compromised Open Internet Order struck down today left much to be desired, but it was a step toward maintaining Internet users’ freedom to go where they wanted, when they wanted, and communicate freely online,” he adds.
For BitTorrent users specifically not much is expected to change in the short-term, not even for Comcast subscribers. The Internet provider told TorrentFreak that it will continue to comply with the FCC’s Open Internet Order for at least six more years.
“Comcast has consistently supported the Commission’s Open Internet Order as an appropriate balance of protection of consumer interests while not interfering with companies’ network management and engineering decisions,” a Comcast spokesperson said.
This promise to keep the Internet “neutral” was part of the NBCUniversal Transaction Order, which is valid until 2020.
“We remain comfortable with that commitment because we have not – and will not – block our customers’ ability to access lawful Internet content, applications, or services. Comcast’s customers want an open and vibrant Internet, and we are absolutely committed to deliver that experience,” the company added.
So no BitTorrent blocking for now from Comcast, although we have to note that throttling would still be an option as long as it’s part of standard network management procedure, or targeted at unauthorized transfers.