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Court Limits FCC's Ability To Stop Broadband Providers From Discriminating Against Internet Content

ACLU Calls For Restoration Of Net Neutrality Principles

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By: ACLU

NEW YORK, April 6, 2010 - A federal appeals court today ruled that the Federal Communications Commission (FCC) cannot require broadband service providers to treat all lawful Internet content equally. The decision rendered the FCC unable to enforce "network neutrality," the principle that Internet users have the right to use applications and access and transmit data of their choice free of discrimination by network providers.

"The Internet has long grown and flourished under the principles of net neutrality, but without anyone to enforce those principles, network providers will be free to discriminate against any lawful content they choose – becoming gatekeepers who can control what information and services the public can access online," said Jay Stanley, Senior Policy Analyst with the ACLU Speech, Technology, and Liberty program. "Immediate restoration of well-established net neutrality principles is necessary to protect freedom and innovation on the Internet."

Today's ruling came in Comcast v. FCC, in which the nation's largest cable company challenged the FCC's authority to enforce net neutrality after Comcast was discovered to have been disrupting operation of the software program BitTorrent independently of any network congestion. Specifically, the U.S. Court of Appeals for the District of Columbia ruled that under Title I of the Communications Act, the FCC cannot stop Internet providers from giving preferential treatment to the Internet content or applications of their choice by, for example, allowing some content to reach customers speedily while slowing down or even blocking other data.

In 2005, the FCC decided to regulate the Internet as an "information service" under Title I of the Communications Act, allowing broadband providers to pick and choose which services and information to transmit. That same year, the ACLU argued in the Brand X Supreme Court case that broadband providers should be regulated under Title II, which would protect against discrimination. While today's ruling found that the FCC had exceeded its authority under Title I, the FCC can still choose to regulate network providers under Title II.

"In order to protect freedom and innovation on the Internet, the FCC should re-establish its regulatory authority under Title II of the Communications Act and require broadband providers to give nondiscriminatory access to all lawful services, information and equipment," said Stanley.

More information about the ACLU's work to restore net neutrality is online at: www.aclu.org/free-speech/net-neutrality

Information about the ACLU's participation in the Brand X Supreme Court case is available at: www.aclu.org/free-speech/fcc-v-brand-x-Internet-services

 

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