A federal court on Tuesday struck down “net neutrality” – a concept cherished by free-speech and consumer advocates – because of the way federal regulators redefined broadband Internet service more than a decade ago.
Citing the Federal Communications Commission’s definition of broadband in 2002 as an "information" service, rather than a "telecommunications" service, the D.C. Circuit Court of Appeals struck down the FCC’s Open Internet Order. These rules barred Internet service providers, like Verizon or Comcast, from blocking lawful website content or otherwise giving high-speed priority to sites of their choosing.
Critics of the decision say it will stifle both the kind of content available on the Internet, as well as the ability to get it. Service providers say very little will change.
“Today’s decision will not change consumers’ ability to access and use the Internet as they do now,” said Randal Milch, executive vice president of public policy for Verizon, which was the plaintiff in the case, in a statement. “Verizon has been and remains committed to the open Internet, which provides consumers with competitive choices and unblocked access to lawful websites and content when, where, and how they want. This will not change in light of the court’s decision.”
As a result of the court's decision, telecommunication giants are now free to charge higher rates for certain content providers, such as Netflix, which can gobble up a third of broadband traffic during peak hours. They could also choose to place other content and services into slower pipelines unless they pay more, which critics say will create a system of online haves and have-nots.
“Now, just as Verizon promised it would in court, the biggest broadband providers will race to turn the open and vibrant Web into something that looks like cable TV,” said Craig Aaron, president and CEO of Free Press, a nonpartisan advocacy group in Washington. “They’ll establish fast lanes for the few giant companies that can afford to pay exorbitant tolls and reserve the slow lanes for everyone else.”
The ruling will profoundly reshape the Internet’s landscape and will have a deep and lasting cultural impact even beyond the Internet, say many media experts.
“We’ve come to rely more and more with every passing year on the Internet as the genesis for new cultural ideas and new political ideas and new vantage points and new voices in our society,” says Aram Sinnreich, a digital media expert and author of “The Piracy Crusade: How the Music Industry's War on Sharing Destroys Markets and Erodes Civil Liberties.” “And we’ve criticized other countries around the world, such as China, for not allowing the Internet to provide that freedom to its citizens."
"It fixes things so that today’s winners are tomorrow’s winners. And today’s hopefuls never reach the big time. It essentially turns the entire Internet into cable television in a very real way," adds Mr. Sinnreich, also a professor at Rutgers University School of Communication and Information in New Brunswick, N.J.
Yet the decision also reveals a federal agency ambivalent about its own intentions. When it classified broadband as an “information” service, it was already attempting to free the industry from regulation and allow it to innovate.
Despite the Obama administration’s strong support of net neutrality, even Tom Wheeler, the current FCC chairman and a former lobbyist and president of the National Cable Association, does not think broadband should be regulated in the same way as “common” phone carriers. Critics tried to push Julius Genachowski, President Obama's first FCC chairman, to classify broadband as a telecommunications service, but intense Republican opposition killed the idea.
“In the Internet's infancy, the commission made the right decision to leave it free from the interference of government regulators. Today's ruling vacates the commission's attempt to go back on this policy and to smother the Internet with rules designed for the monopoly telephone network,” said House Energy and Commerce Chairman Fred Upton (R) of Michigan and Rep. Greg Walden (R) of Oregon, in a statement.
But in light of the FCC’s own ambivalence about the classification and regulation of broadband, many observers say that the issue is less one of politics than of industry influence.
“The politics of it all, it’s not really a left versus right issue,” says Sinnreich. “It’s really more a lobbyist versus public advocate issue. The sad truth is that there is a huge revolving door between regulators and legislators and industry lobbyists. And it’s gotten much, much worse in recent years.”
The rule change occurred during the tenure of Michael Powell, appointed to lead the FCC in 2001 by President George W. Bush. Mr. Powell spearheaded the administration’s deregulation of the industry. Powell, the son of former Secretary of State Colin Powell, is the currently CEO and president of the National Cable and Telecommunications Association, a Washington-based lobbying group.
“Today’s historic Court decision means that the FCC has been granted jurisdiction over the Internet,” said Powell in a statement. “While we fully expect some to rush to judgment about the fate of the open Internet, we should remember neither the adoption of the Open Internet Order, nor its partial repeal, has led or will lead to significant changes in how ISPs manage their networks.”
But critics contend that the very purpose of Verizon’s suing the FCC in the first place was precisely to change how ISPs manage their networks – and despite their assurances, critics contend, they now have that power to block websites, prioritize certain content, or create faster networks for the content of their choosing.
“The beauty of the Internet has been that anybody who has something to say, anybody who has a good idea, or smart piece of software, or funny idea or a beautiful song, can post it, and they can be on an even playing field with the biggest dogs in the world,” says Sinnreich.
“That is now completely blown out of the water, thanks to this ruling.”