A Death Blow To Net Neutrality?

Andrew Sullivan —  Jan 15 2014 @ 12:10pm

Andrew Leonard outlines the effects of a Tuesday court ruling that invalidated the FCC’s net neutrality rules:

In a decision widely seen as a victory for the big telecommunication companies and a defeat for defenders of the “open” Internet, the D.C. Court of Appeals struck down the FCC’s “net neutrality” rules on Tuesday. The decision in Verizon v. FCC effectively gives providers of Internet access the right to discriminate in favor of particular Internet services —  to create “express lanes” on the good old information superhighway. … But the decision is not necessarily a clear-cut ruling that net neutrality is unconstitutional. The court based its decision on a more technical issue: whether or not the broadband companies could be classified as “common carriers” that are not allowed to give special preferences to any users of their network infrastructure. Since the FCC had previously decided that broadband ISPs are not common carriers, the court ruled that the FCC could not then turn around and regulate the ISPs as common carriers.

Juan Cole warns that the ruling could allow “the corporatization of the Internet”:

The reason readers of Informed Comment can reach it as quickly and conveniently as they can reach a multi-billion dollar corporate web site is the principle of internet neutrality, built into the system by Tim Berners-Lee and other architects of the World Wide Web, which went live in 1991. Large private corporations that have been allowed to build out the pipes through which internet traffic flows have long wanted to introduce a different system, of net metering. In essence, if a corporation paid the internet provider a million dollars a year, readers could get to that site immediately. But for a site like Informed Comment without those sorts of bucks, service would be deliberately slowed and readers would have to wait a minute or two for the site to load. Studies have showed that most people won’t wait that way. So the entire independent cybersphere would be made invisible and more or less swept away. A similar thing happened to radio, which was a grassroots medium at the beginning and then was corporatized with government help.

Marvin Ammori isn’t giving up:

Those of us who had been involved with the net neutrality debate knew that, without reclassification, the flawed FCC order would never stand. But there were 100 ways it could have fallen. I thought that the court’s decision would be a baby-splitting half-loss that could enable the FCC to wipe its hands of network neutrality and pretend everything was A-OK. I was wrong on that point. The loss was so definitive, the powers granted to cable and phone companies so outrageous, that the FCC has a live grenade in its lap.

Now, every side is settling on its narrative. AT&T, Verizon, and their allies will argue that the decision means network neutrality is illegal, full stop, and the FCC can never adopt an order. They will also argue that the FCC needs to go to Congress to get more authority. Both arguments are wrong, of course. The FCC has all the power it needs to clean up the mess, simply by doing what [former FCC Chairman Julius] Genachowski—who, it must be said, is a very nice guy—knew he had to do but lacked the spine for.

Drum peers into his crystal ball:

The next step might be an appeal to the Supreme Court or it might be an FCC decision to reclassify the internet as a common carrier. But that’s what it’s come down to. If the Supreme Court upholds this decision (or refuses to hear an appeal), net neutrality is dead unless the FCC or Congress decide to reclassify broadband internet as a telecom service regulated as a common carrier. If they don’t, it will up-end the internet as we know it, with carriers free to provide, say, Amazon or Google with preferred service in return for higher access fees. That could be a big problem for startups—or anyone the telecom providers consider a competitor—who would have to contend with slower service as they tried to build their businesses. The big telecom companies say that’s not what they have in mind, and maybe they don’t right now. But they will. It’s only a matter of time.

Pethokoukis calls the ruling a victory for consumers and the free market:

The FCC rules were meant to impose one-size-fits-all price controls on Internet service providers and force them to treat, as The Wall Street Journal describes, “similar content on their broadband pipes equally.” Sounds innocent enough. Sounds fair. Sounds neutral. But at its core “net neutrality” really is nothing more than an attempt at rent seeking by content providers who want the ISPs to pay the tab for future network upgrades. It’s kind of like Apple lobbying for price controls on shippers like FedEx when transporting iPads from China to America. Whenever the transport firm bought new planes, it would have to eat the cost or pass it downstream to some other customers. In this case, the customers would have been regular consumers.

Bret Swanson agrees:

The court’s basic finding is correct and good for the Internet economy. Common carriage style regulation is not appropriate for the Internet. The Internet is a fast changing, multipurpose network, built and operated by numerous firms, with many types of data, content, products, and services flowing over it, all competing and cooperating in a healthy and dynamic environment. Old telephone style regulation, meant to regulate a monopoly utility that used a single purpose network to deliver one type of service, would have been a huge (and possibly catastrophic) step backward for what is today a vibrant Internet economy.