Despite the hype, the D.C. Court of Appeals’ ruling against the Federal Communications Commission and its net neutrality rules has not signaled the end of the Internet as we know it.
Speculation about Internet providers charging for tiered web access and limiting access to bandwidth-heavy sites like Netflix is overblown. Why? Verizon v. FCC bruised the government agency but, the ruling hasn’t completely killed the popular regulation on how the telecommunications industry must treat all legal sites the same.
The FCC lost this round because of their use of language. The court sided with the service providers, writes telecommunications attorney Douglas Jarrett, because
the FCC has classified and continues to maintain that facilities-based, high speed Internet access services providers are “information services providers,” as distinct from “telecommunications carriers,” the Commission cannot impose common carrier obligations—principally the nondiscrimination obligations of Title II of the Act—upon information services providers.
If Internet service providers were labeled “telecommunications carriers,” the FCC would have the same authority of them as it does over telephone services.
It’s important to note that the court did not entirely dismiss the FCC’s ability to regulate the Internet. According to communications lawyer Michael Beder for Inside Tech Media,
For the first time, a court of appeals held that Section 706 of the 1996 Telecommunications Act gives the FCC “affirmative authority to enact measures encouraging the deployment of broadband infrastructure.” That statute instructs the FCC to encourage broadband deployment through, among other measures, “regulating methods that remove barriers to infrastructure investment.”
The court also accepted as reasonable the FCC’s argument that net neutrality rules would encourage broadband deployment by lowering the entry barriers for innovative “edge providers” such as Amazon and Netflix, thus driving consumer demand and, ultimately, more investment in broadband infrastructure.
This case is a hiccup for the federal agency, but FCC Chairman Tom Wheeler will not accept defeat. Wheeler may be looking at the chance to appeal, writes Paul Feldman for the CommLawBlog.
Taking the Open Internet litigation to the next level – either by a petition for rehearing (whether to the three-judge panel or to the D.C. Circuit en banc) or by a petition for certiorari to the Supreme Court – presents risks. … From a practical perspective, the appeal process is not a quick one. An appeal would prolong the uncertain status of the Open Internet rules, contrary to the FCC’s years-long effort to resolve that status.
There is also the option of reclassifying providers as “telecommunications carriers,” but that does not necessarily present itself as a less bumpy road because it “would amount to a major reversal after a decade of classifying broadband as a largely unregulated information service. As the court recognized in the instant case, an agency can change its mind, but any change needs to be fully considered, well-reasoned and substantially justified,” writes Beder.
There have also been suggestions that the FCC should avoid the courts altogether and push Congress to make net neutrality a law, according to Lathrop & Gage’s Privacy, Media & Beyond. Representative Anna Eshoo, D – Calif., said that she is prepared to introduce legislation for an equal Internet. There is no guarantee that it would pass the House because “net neutrality has been a dividing line between Democrats and Republicans who generally agree Internet freedom is a good thing, but debate whether net neutrality gives too much power to regulators and has the potential to stifle the free market of the telecom industry,” reports Tom Risen for U.S. News & World Report.
There is also an argument that the FCC should just leave the Internet alone.
In an opinion article published in the Wall Street Journal, former FCC commissioner Robert McDowell says that net neutrality should be abandoned because “they radically depart from—and endanger—the highly successful, nongovernmental, private-sector-led, ‘multi-stakeholder’ process for resolving the Internet’s technical challenges.”
Net neutrality regulation, in its current form, has only been around for less than four years, and the Internet managed to live harmoniously before the FCC created the Open Internet rules in 2010 in response to losing a case against Comcast. Telecommunications companies technically had the ability to charge websites and consumers for types of access, but they didn’t.
While service providers do have the legal right to make the changes that Internet activists fear, they don’t have to and so far no one has jumped at the chance yet. Instead of waiting anxiously for a storm that may never come, it would be more worthwhile to surf happily until the FCC, or other lawmakers, decide their next step.