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“The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”     Ayn Rand

April 6, 2010

Federal Appeals Court Strikes Major Blow Against Net Neutrality, Major Blow For Economic Freedom

by Doug Mataconis

The U.S. Court of Appeals in D.C. today hand a major defeat to the Net Neutrality crowd:

WASHINGTON (AP) — A federal appeals court has ruled that the Federal Communications Commission lacks the authority to require broadband providers to give equal treatment to all Internet traffic flowing over their networks.

Tuesday’s ruling by the United States Court of Appeals for the District of Columbia is a big victory for the Comcast Corporation, the nation’s largest cable company. It had challenged the F.C.C.’s authority to impose so called “net neutrality” obligations.

The ruling marks a serious setback for the F.C.C., which is trying to officially set net neutrality regulations. The agency chairman Julius Genachowski argues that such rules are needed to prevent phone and cable companies from using their control over Internet access to favor some online content and services over others.

The decision also has implications for the massive national broadband plan released by the F.C.C. last month. The agency needs clear authority to regulate broadband in order to push ahead with some its key recommendations, including a proposal to expand broadband by tapping the federal fund that subsidizes telephone service in poor and rural communities.

The court case centered on Comcast’s challenge of a 2008 F.C.C. order banning the company from blocking its broadband subscribers from using an online file-sharing technology known as BitTorrent.

Melissa Clouthier over at Liberty Pundits sums up quite nicely what this really means:

Basically this means that a company can do business the way it wants to. What different internet providers have been worried about is having the “information spigot” turned off for them. That is, a user or provider who uses huge amounts of bandwidth could be denied, and that could kill business.

So companies like Google and other big providers wanted the courts to say that the FCC could control this and guarantee that everyone has as much bandwidth as they want.

But the court ruled that a company like Comcast has every right to decide what data it carries.

That is exactly how it should be.

In the case that was before the Court, Comcast had made the business decision that Bit Torrent users were utilizing an undue amount of a limited asset, bandwidth, and in order to protect it’s network and allow the majority of it’s users to be able to do things like check their email without having to worry about the network going down because some 21 year old is using Bit Torrent to download a bootleg copy of Avatar.

It’s Comcast’s network, they should have the right to decide how it’s used and to take action to protect it’s property and it’s other customers.

The Court got this one right.

Here’s the 36 page unanimous opinion:

Comcast v. Federal Communications Commission

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5 Comments

  1. “The Court got this one right.”

    And I think it surprised the FCC too. They were expecting just the opposite ruling.

    Comment by T F Stern — April 6, 2010 @ 10:47 am
  2. I am left split on this decision. If there were a free market place of broad band in place I would be all for it. But in my neighborhood if you want broad band faster than DSL then your stuck with Comcast. I hate Comcast. I especially hate their adds about satalite TV that are just outright lies. I hate that I have to rent equipment from them. U-verse oh U-verse where for art thou U-verse?

    Comment by Norm — April 6, 2010 @ 5:10 pm
  3. I’m also split on this. The fact of the matter is that the airwaves/radiowaves/tubes/etc that TelCom companies use are largely a privilege granted and enforced by government. As libertarians, we can’t seriously look at this and call it a “win”, it’s a decision that favors an oligopoly…

    SUre, in a truly freed market, would I support the right of a BB provider to restrict or limit access to certain things? Absolutely. But it’s not a free market.

    Comment by David Z — April 6, 2010 @ 7:00 pm
  4. Context counts (e.g., “Why the FCC?”), yet I can’t help but chuckle a bit at libertarians who love to forget that these companies, without exception*, got their “private property” by spending decades as government-chartered monopolies and oligopolies. Did I mention that context counts?

    *Cf., Google, which has threatened to build its own pipe with its own money and could, unlike Comcast et al, claim “private property” with clean hands and a straight face.

    Comment by KipEsquire — April 7, 2010 @ 6:23 am
  5. This ruling seems to be a step in the wrong direction. In most areas of the country broadband providers are a protected monopoly, not unlike a public utility. They are NOT “just a business” whose services can be easily obtained elsewhere. I am no more able to change my cable broadband provider than I am able to change my electric or water provider. Regulations need to be crafted that reflect this reality.

    Comment by TobyTucker — April 7, 2010 @ 9:46 pm

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