Earlier this week, the U.S. Court of Appeals for the District of Columbia issued a ruling (PDF) that partially negated the Open Internet Order established by the Federal Communications Commission (FCC). In doing so, the court struck a hard blow against net neutrality, or the idea that all traffic on the Internet is created equal—no carrier or broadband provider can choke off access to a Website that doesn’t suit its corporate wants or needs.
Over at The Verge, Nilay Patel offered a good rundown of how the court arrived at its decision, which basically hinges on the FCC’s failure to officially classify broadband providers as “common carriers” (which would have subjected them to the regulations outlined in the Open Internet Order). “The entire American internet experience is now at risk of turning into a walled garden of corporate control because the FCC chickened out and picked the wrong words in 2002,” he wrote, “and the court called them on it twice over.”
For net neutrality advocates, the dangers of the court’s decision are pretty clear: broadband providers such as Verizon could block access to particular Web properties for competitive reasons, or charge more for certain companies (such as Netflix) to deliver content over the Web. Imagine if those broadband providers started treating the Internet like cable television, and demanded customers pay more to access Facebook or Google—“messy” doesn’t even begin to describe the resulting legal, financial, and cultural repercussions.
As Wired columnist (and American Library Association president) Barbara Stripling pointed out in a Jan. 16 op-ed, the death of net neutrality could harm Internet startups, which depend on equal access to the Web in order to effectively compete against tech giants, as well as educational institutions that need cheap connectivity to a wide range of Websites in order to best serve students. “An open Internet is essential to our nation’s educational achievement, freedom of speech, and economic growth,” she wrote. “Tuesday’s ruling flies in the face of intellectual freedom, a key library community principle that supports the right of all people to seek information without restriction.”
In the wake of the court’s decision, the White House voiced its support for net neutrality. “The President remains committed to an open Internet, where consumers are free to choose the websites they want to visit and the online services they want to use,” read a statement issued Jan. 14, “and where online innovators are allowed to compete on a level playing field based on the quality of their products.”
That wasn’t a surprise, considering President Obama’s endorsement of net neutrality during his 2008 campaign, but it remains an open question whether the executive branch will throw itself into the current debate. If FCC chairman Tom Wheeler decides to reclassify broadband providers, those providers will fight back with any political tool at their disposal. If he appeals the court’s decision, there’s a significant likelihood that the FCC will lose that round, given the precedent already established. (At least this latest court ruling reinforces the FCC’s ability to regulate broadband in general.)
Comcast claims it will follow the Open Internet Order through 2018, thanks to a previous agreement with the government. But at least for the moment, it’s anyone’s guess what the broadband providers will try to do with this newfound “freedom.” In a USA Today op-ed, Michael K. Powell (president and CEO of the National Cable & Telecommunications Association), wrote that broadband providers “continue to support the principles that allow consumers to access lawful websites when, where and how they choose.”