• by Wendy Davis , Staff Writer @wendyndavis, August 1, 2008

This morning, the FCC ruled against Comcast for violating net neutrality principles by throttling peer-to-peer traffic, but the order wasn't quite the all-out blow for net neutrality that it could have been.

Ruling 3-2, the FCC held that Comcast shouldn't have attempted to manage congestion by singling out a specific type of protocol for interference and ordered Comcast to cease slowing peer-to-peer traffic by the end of the year.

"The specific practice Comcast was engaging in has been roundly criticized and not defended by a single other broadband provider," FCC Chair Kevin Martin stated today. "If we aren't going to stop a company that is looking inside its subscribers' communications (reading the 'packets' they send), blocking that communication when it uses a particular application regardless of whether there is congestion on the network, hiding what it is doing by making consumers think the problem is their own, and lying about it to the public, what would we stop?"

With the order, the FCC is giving teeth to a 2005 policy statement saying that service providers should treat Web traffic equally. While that policy statement is relatively recent, the common carrier principles it sets out are far more entrenched. Simply put, they hold that just as telephone companies aren't allowed to listen in on phone calls and decide which ones to cut short, Web carriers shouldn't pick and choose which types of content or applications to allow.

But the order has a very big loophole. The FCC said that ISPs are still allowed to interfere with unlawful content -- including material that infringes on copyright. "Blocking unlawful content such as child pornography or pirated music or video would be consistent with federal Internet policy," the FCC stated.

That's a pretty big exception -- one that sets up ISPs to act as more than just "dumb pipes." It officially establishes them as copyright gatekeepers -- which could ultimately prove just as damaging to people's ability to access the Internet as the type of traffic-shaping Comcast was engaged in.

Currently, ISPs often don't know whether content is lawful or not. Consider, even copyright owners make bad calls when it comes to figuring out whether particular clips infringe on copyrighted material or are a fair use. Many users have pushed back from bad takedown notices, and at least some have won in court. But if ISPs start unilaterally deciding when to block so-called copyrighted material, it's not clear that users will have any good remedy.