Why Is Tuesday's Court Decision on Net Neutrality Such a Big Deal? And What Happens Next?
Internet providers are now free to stop or slow sites and apps they dislike and offer faster access to services they like — an “upgrade” of the Internet that could make it look a lot more like cable TV, where you pay to get particular channels or bundles of channels.
Blame for the demolition of “net neutrality” goes to a federal court that agreed with objections filed by Verizon. And the tough thing for Internet users is that the court’s opinion of the Federal Communications Commission’s rules isn’t wrong. The FCC’s rules were weak.
The ruling by judges David S. Tatel, Laurence H. Silberman and Judith W. Rogers for the United States Court of Appeals for the District of Columbia Circuit said that because the FCC declined to classify broadband providers the way you probably think of them — as “common carriers” that deliver information without interference, as the phone companies are considered — it can’t impose common-carrier-style regulations through other means:
“Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.”
So informed, the court zapped provisions in the FCC’s Open Internet Order of 2010 that banned broadband providers from blocking “lawful content, applications, services” or practicing “unreasonable discrimination” against “lawful network traffic.” The court did keep a transparency rule that providers must tell you if they block or discriminate for or against certain types of traffic.
Verizon, the company that filed the suit, says it won’t start blocking sites — but a statement posted under the name of General Counsel Randal Milch didn’t rule out slowing some sites or charging other sites for faster delivery:
“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.”
For an example of what’s now possible, see AT&T’s announcement from last week of a new “Sponsored Data” option on its wireless network through which a company could give you free data use to coax you into trying out its stuff. Or Google working with carriers in the Philippines to offer “Free Zone” mobile access to its services. Or Facebook providing free in-flight access to its services to GoGo WiFi users.
Those deals can be great if you get something for free. But for a startup looking to compete with a large, established company that can now buy its way to the head of the line — and not just on wireless but in wired broadband, where most Americans face a local monopoly or a duopoly — these deals are not nearly so awesome. Which means that free access may cost you in terms of less competition and less innovation in Web services and apps.
(Understand that Yahoo Tech is published by a large Internet firm whose fortunes could be hindered by unfriendly Internet providers. But you could say about the same of any newspaper, TV station or blogger.)
If you want to blame the court or Verizon for this state of affairs, don’t. The judges offered a fair reading of the law as it stands — and they had the good sense to ignore Verizon’s absurd, corporations-are-people argument that net-neutrality regulations stomp on its First Amendment rights. Verizon, in turn, did what most large corporations with many lawyers on retainer do: Try to engineer the loosest regulatory climate possible.