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Court Ruling Strikes Blow Against Net Neutrality

Court Ruling Strikes Blow Against Net Neutrality

April 6, 2010 | By Chris Remo

April 6, 2010 | By Chris Remo
More: Console/PC

A federal court has ruled against the Federal Communications Commission in a case that may hamper the FCC's goals of "net neutrality" regulations, renewing concerns that online video game creators may have to negotiate with ISPs to operate their games in the future.

The U.S. Court of Appeals for the District of Columbia sided with cable and internet provider Comcast, which in 2008 had blocked users' BitTorrent traffic due to high bandwidth usage. The FCC claimed Comcast's action was illegal.

At the heart of the decision was the court's claim that the FCC's regulatory authority does not extend to internet service providers. The government body's purview specifically includes telephone service, broadcasting, and cable television -- and the court maintains that the FCC did not concretely relate its challenge to Comcast to one of its clear areas of jurisdiction.

The future of net neutrality could significantly affect video games and other online entertainment. Supporters of net neutrality have expressed concern that without net neutrality rules in effect, developers and gamers would be subject to the whims of service providers when it comes to what data is passed online, and how much bandwidth is allocated.

In January, a group of game developers met with the FCC to voice their concerns about a "balkanized" internet, where developers must individually negotiate bandwidth deals for their games with the various ISPs.

"If developers had to spend time and resources negotiating with ISPs for quality service, that would be a drag on innovation and make the platform less attractive to innovators," added GamerDNA's Jon Radoff, according to an Ars Technica report.

"All we want is transparency and protection against discrimination; if you're making or playing a game, you want to know what kind of data your ISP will block and why," former Turbine CEO Dan Scherlis told GamePro this year.

Opponents of such legislation say that allowing ISPs that level of control could allow them to better allocate bandwidth, resulting in smoother internet service and more consumer options in terms of gradually-priced service tiers. They claim providers that saddle consumers with undue restrictions would be punished by less success in the marketplace.

FCC spokesperson Jen Howard says today's decision is an obstacle, but not an insurmountable one. "Today's court decision invalidated the prior Commission’s approach to preserving an open
Internet," she said in a statement. "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."

Telecommunications- and game-oriented attorney Steven Augustino told Gamasutra that today's decision will significantly hamper the FCC's net neutrality efforts -- and will even have a negative impact on its plan to bring 100 Mbps internet service to most American homes by 2010.

"The timing of this could not have been worse for the FCC," he said. "This decision will make it harder for the FCC to implement that [coverage] plan, because every action it takes in furtherance of the plan will have to be tied to the FCC's core responsibilities over telephone, radio or cable video. The Commission has not even opened its first proceeding to implement the Plan and already it has hit a roadblock."

Furthermore, said Augustino, FCC members are divided as to how to proceed in the wake of the precedent set over its legal sphere of authority.

"The court did not completely rule out FCC jurisdiction over Internet practices and applications, but the decision will constrain them," he said. "In the immediate aftermath of the decision, individual FCC Commissioners drew sharp battle lines over whether the solution is to declare the Internet a basic transmission medium, like telephone service. The Commission is divided on this question, and we may see its decision-making gridlocked over the next few months."

Nevertheless, Howard stressed that the Commission intends to continue its battle to guarantee net neutrality. "The FCC is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans," she said. 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."

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