President Barack Obama today appointed net neutrality supporter Julius Genachowski to head the Federal Communications Commission.
Genachowski, a Harvard Law classmate of Obama's, was
largely responsible for the president's pro-neutrality tech platform, which he was touting as far back as October 2007. For that reason, advocates like Public Knowledge quickly cheered news of
Genachowski's appointment. "As the architect of President-elect Obama's Technology and Innovation Plan, it is clear that he understands the importance of open networks and a regulatory environment
that promotes innovation and competition to a robust democracy and a health economy," Public Knowledge president Gigi Sohn said in a statement.
Of course, much has changed since late
2007. Most notably, the FCC last summer came out with a pro-neutrality ruling. Former FCC head Kevin Martin, a Republican, sided with the two Democrats on the commission and ruled that Comcast
violated neutrality principles by slowing peer-to-peer traffic.
In some ways, that ruling has made the issue less pressing. After all, it's hard to argue that new laws are needed when
the FCC is already sanctioning companies for violating the principle that Internet service providers should let subscribers access their choice of content.
Yet, it's far from clear that
the FCC's ruling will hold up in court. The agency based its decision on principles it issued in 2005, which stated ISPs shouldn't discriminate based on content or applications. But the agency never
codified those principles -- an omission that's given Comcast the ammunition to appeal the ruling on the ground that the FCC had no authority to sanction the company. That appeal is currently pending.
Additionally, Martin told lawmakers that he was opposed to new neutrality laws because the agency didn't need new legislation to police ISPs. But legislation would have certainly gone a
long way towards scuttling Comcast's argument that it was allowed to impede peer-to-peer traffic.