In a decision widely seen as a victory for the big telecommunication companies and a defeat for defenders of the "open" Internet, the D.C. Court of Appeals struck down the FCC's "net neutrality" rules on Tuesday. The decision in Verizon v. FCC effectively gives providers of Internet access the right to discriminate in favor of particular Internet services -- to create "express lanes" on the good old information superhighway.
A statement swiftly issued by the American Library Association summed up the glum view of the losing side:
The court’s decision gives commercial companies the astounding legal authority to block Internet traffic, give preferential treatment to certain Internet services or applications, and steer users to or away from certain web sites based on their own commercial interests. This ruling, if it stands, will adversely affect the daily lives of Americans and fundamentally change the open nature of the Internet, where uncensored access to information has been a hallmark of the communication medium since its inception.
But the decision is not necessarily a clear-cut ruling that net neutrality is unconstitutional. The court based its decision on a more technical issue: whether or not the broadband companies could be classified as "common carriers" that are not allowed to give special preferences to any users of their network infrastructure. Since the FCC had previously decided that broadband ISPs are not common carriers, the court ruled that the FCC could not then turn around and regulate the ISPs as common carriers.
For some longtime observers, today's net neutrality train wreck could be seen coming from miles away. Two years ago, when the FCC released its "Open Internet" rules, Wired's Ryan Singel reported that the new framework faced difficult judicial hurdles.
So instead the FCC says it found new authority to regulate ISPs that it has deregulated, though it’s not clear that the new authorities, which look cobbled together with Legos and Lincoln Logs, will hold up under scrutiny, especially if the telecoms get their way and have the suits heard by the same federal court that demolished the old rules.
In that case, the fights, lobbying and political posturing will start all over again.
Another note of interest: The D.C. Court of Appeals occupies a particularly important spot in the nation's judicial system, as it is the court in which government regulations are typically contested. Republican resistance to President Obama's efforts to fill three open seats on the D.C. Court led, finally, to the nullification of the filibuster last fall. So it's possible that future versions of the court will be more friendly to Obama administration policy.
But in the meantime, the FCC needs to assert itself more vigorously. The court did not rule that net neutrality is illegal. According to the Internet advocacy group Public Knowledge, "the Court's ruling established that the power to create rules for the web are entirely under the power of the FCC."
Public Knowledge's senior vice president, Harold Feld, urged the FCC to go back to the drawing board:
"Needless to say, we're disappointed in today's decision. The Court has taken away important FCC flexibility, and its opinion could complicate FCC efforts to transition the phone network to IP technology, promote broadband buildout, and other matters.
"However, the Court did uphold broad Commission authority to regulate broadband. To exercise that authority, the FCC must craft open internet protection that are not full fledged common carrier rules. Alternatively, if the FCC needs broader authority it can classify broadband as a title 2 common carrier service.
"Both of these are viable options.