"Our primary goal was always to clear our name and reputation. We have always been focused on serving our customers and delivering the quality open-Internet experience consumers want. Comcast remains committed to the FCC's existing open Internet principles, and we will continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant Internet."

– Comcast spokesperson (PR BusinessWire

On April 6, a federal appeals court ruled that the Federal Communications Commission (FCC) lacks the authority to force ISPs to keep their virtual hands off the traffic that flows through their networks.

The issue of ISPs messing with network traffic first raised its head when it was discovered back in 2007 that Comcast, the giant cable TV and Internet service provider, was shaping traffic, that is, selectively slowing or blocking specific packet flows within its network. The company argued traffic shaping was necessary to optimise network performance for the benefit of customers, but one particular aspect of what it was doing raised warning flags for many people: It was blocking BitTorrent traffic.

Now, there is no doubt that BitTorrent can impose a heavy load on a cable network. The hierarchical system of shared hubs used by cable services means a few heavy users can exhaust available bandwidth within a hub and the architecture of BitTorrent tends to make users automatically bandwidth greedy.

But the problem with placing limits on how customers use the 'Net is that the constraints can be implemented not only to optimise performance but also to maximise revenue opportunities. This was the genesis of the whole net neutrality debate that's been bubbling since the early oughts.

The reason the court found against the FCC was that the FCC, under the Bush administration, classified ISPs as providing "information services" rather than "communications services". The FCC only has authority over the latter.

This classification was made at the urging of the cable and phone companies (supported by great, steaming piles of lobbying money) and, while the FCC under Chairman Julius Genachowski could reclassify the services with Congress's approval, it's obvious that formidable power politics will be lined up to block any such move. Alternatively, the FCC could appeal the ruling. Either way, whatever it does it will not be quick and the FCC's 100 Squared proposal to accelerate US broadband availability (delivering 100Mbps service to 100 million households) will be seriously affected.

It's clear that what's at stake is not really about bandwidth management. To understand the commercial implications, suppose a cable company such as Comcast was to acquire a cable network, say, NBC Universal, then when it came to something like delivering TV content via the 'Net it could favor that investment over competitors, creating a monopolistic situation that impeded competition and reduced consumer choice.

It could also offer Bing preferential carriage over Google. It could block Vonage to promote its own VoIP services. As Comcast is acquiring NBC Universal, without regulation all of these scenarios and more could, and probably would, come to pass.

I find the Comcast spokesperson's comment that the ruling clears "our name and reputation" particularly revealing. In a case like this, if you want to deflect attention from the real, substantive issues, you need to change the topic, make out like the issue at stake was something other than what it really was.

If you don't work for the telephone and cable companies, watch this mess carefully and speak out for regulation because if you don't, you'll watch Internet access prices go way up, choice decrease, innovation be stifled and your online freedoms trashed. If you do work for the telephone and cable companies, consider carefully what you'll support and why; it will affect your family, your society and ultimately, you.