Lawsuit Seen After FCC's Comcast Ruling - Page 2

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Does that mean that Comcast will sue?

"Yes," said IDC analyst Amy Lind. "Comcast has no choice but to do that, just on principle alone."

Lind told InternetNews.com she thinks that in issuing a relatively benign ruling (there were no fines involved), the FCC's action is well within its purview, and would likely hold up to a legal challenge.

A more cautious Levin said that while "it's premature to speculate on the prospects, we believe such litigation would raise serious issues about the FCC's statutory mandate and decision making.

"If the agency were found to lack authority to act in this area, it could spur network neutrality legislation in Congress," he added. "If the FCC were found to have erred in not establishing clear rules, it could spur a future FCC to adopt rules that cable (and the telcos) would find far more troubling than today's order."

The dissenting commissioners protested that the majority was voting to enforce principles that had not gone through the formal rulemaking process, and was therefore exceeding its authority.

The complexion of the future FCC will likely hinge on the political climate of the next administration, which of course might see a dramatic change in January. Since commissioners are political appointees, Levin suggested that an Obama presidency could lead to an FCC that is unabashedly pro-Net neutrality.

An FCC spokeswoman told InternetNews.com that there was no indication when the enforcement order would be finalized, but said that it was not looking "imminent." Orders can sometimes take months to materialize, but since this one requires Comcast to act before the end of the year, it likely won't drag on too long.

Lind, who believes it will survive a court challenge, doesn't expect the compliance requirements to be too onerous, but that it could alter the way broadband operators charge their subscribers.

"The impact is going to be minimal -- at least in the near-term," she said. However, "it opens up the possibility going forward that service providers in general will look a little more closely at bandwidth metering, like what Time Warner Cable is doing." In January, Time Warner Cable said it would begin a limited trial of metered broadband billing this year. That practice is common among foreign Internet service providers, but has only rarely been applied in the United States.

Another possible outcome will be Web content and service providers signing side agreements with network operators to ensure that there traffic is given priority. Internet phone provider Vonage has already reached such an agreement with Comcast. The FCC's ruling does not appear to address the issue, though it could come up when the commission reviews Comcast's compliance report.

But when it comes to network management, applications do not compete on a level playing field, according to Kurt Dobbins, CTO at network security provider Arbor Networks.

"The fact is that not all applications are the same; different applications have different tolerances for neutrality," Dobbins wrote in a blog post. "A voice application is much more sensitive to packet latency, jitter, and packet loss then is a file sharing application, which can adapt its rate of transmission and recover lost packets."

Metered billing and quality-of-service side deals invite their own set of controversies, but for Lind, who is sympathetic with broadband providers' need to manage traffic on their networks, the chief lesson of the Comcast fracas is a point of transparency:

"The message that has come out of this is that you need to be more upfront with your subscribers."