This morning we were greeted by this tweet from Reuters:
U.S. appeals court strikes down net neutrality rules, siding with telecom companies: court opinion
— Reuters Top News (@Reuters) January 14, 2014
We looked into it, and here’s what we found out: the United States Court of Appeals for the District of Columbia just invalidated FCC net neutrality rules that would’ve made it illegal for telecom companies to favor certain types of traffic over others. They reached this decision by way of a loophole. The Federal Communications Commission had chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, like telephones are, despite the fact that in nearly all cases it’s the same companies providing the phone services as providing the internet services. According to the Communications Act, they can’t regulate services they don’t identify as common carriers, so the telecomms are free to do as they please.
The ruling lets companies like Verizon and Time Warner to charge web sites to serve up their content faster, as well as now being gatekeepers to the Internet if they want to do that. In a worst case scenario, you could be charged to access sites you like (like your favorite sci-fi radio station), or if you’re running your own internet business, you could have to pay extra to have your web site viewable by the public. There is really no restriction on that, other than the latest federal court ruling on Verizon’s appeal to the FCC that telecom companies have to tell subscribers which sites they’re favoring. That alone could have a chilling effect on how much of this actually happens, but it’s a regulation without the possibility of oversight at the moment, since the court has ruled that whatever the regulating body would be to control this, the FCC wouldn’t be that regulating body. The further ramifications of this are that since the court’s decision means there is no regulatory body for internet providers, the telecomms are free to do pretty much whatever they want to their own customers without fear of punishment or reprisal.
All is not lost, however. Since the ruling was from the Court of Appeals, it’s not the end of the road. For one thing, it can be taken to the United States Supreme Court to be possibly overturned. Common sense says that the FCC’s fuzzy definitions are a result of technology outgrowing the language of the original Communications Act. Having been written in 1934, it could not have predicted the existence of the Internet as a communications medium. For another, all the FCC has to do is to reclassify internet providers as common carriers, and suddenly their existing rules apply to the telecomms again, and all is well.
The current chairman of the FCC expressed his strongest statement to date on the importance of net neutrality and the responsibility of the FCC to preserve it just last week according to this article in the Washington Post, so they have a lot of fight left in them. Don’t expect this to be over.
What happened today is the exploitation of a loophole in legislation that was written so long ago that voice operators were still connecting every single phone call by hand, plugging phone jacks into connection panels, one call at a time. While today’s ruling looks bad – and make no mistake, it is very bad and has the potential of taking the internet away from the people that built it and giving it to the corporations – it’s not the end of the story by any means. Good may yet triumph. Writing your congress critter about the problem may not be a bad idea.
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