Yesterday’s Appeal Court ruling against the FCC's net neutrality rules will probably not mark the end of the internet as we know it.
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Following the ruling, internet providers now in theory have the ability to prioritize certain internet traffic – charging Google, for example, to ensure that YouTube videos load particularly quickly. It’s an ability that many fear could act to inhibit competition by making it harder for start-ups to compete. Some carriers have assured customers they’d do no such thing; but Verizon, the company at the heart of the case, itself says only that it won’t actually block any websites.
But all is by no means lost. First, there’s the option of appealing the ruling in the Supreme Court, which chairman Thomas Wheeler has confirmed he’s considering. But there are other possibilities.
After all, the court ruled that the FCC does indeed have the authority to create open access rules – it just can’t apply them to services that it itself has said deserve to be categorized separately. The problem only arises because the FCC has defined broadband providers as exempt from being treated as common carriers.
The simplest solution, therefore, would be for the FCC to change its definition of a common carrier to include broadband providers – something for which consumer groups are calling.
“The good news is that the opinion… lays out exactly how the FCC essentially tied its own hands in the case, and makes it clear that the FCC has the power to fix the problem,” says David Sohn, general counsel of the Center for Democracy and Technology. “The FCC should reconsider its classification of broadband internet access and reestablish its authority to enact necessary safeguards for internet openness.”
Such a course would, to put it mildly, be unpopular with Republicans. Senator John McCain (R-AZ.), for example, delivers a warning in a statement: “I have long opposed efforts that would allow the government to regulate the internet, and today’s decision is a win for consumers and broadband innovation,” he says. “This decision also sends a strong message to federal agencies that may attempt to direct by regulation that which is not authorized by Congress.”
And senators John Thune (R-SD.) and Roger Wicker (R-Miss.) have suggested that Wheeler is actually committed to reverting to Congress. As they point out, in June last year, during his confirmation hearing, he promised to “come to Congress for more direction before attempting another iteration of network neutrality rules”.
But on the FCC’s side are Democrats including Senator Edward J Markey (D-Mass) – author of the original net neutrality bill. “As one of the primary authors of the Telecom Act of 1996, I know the Communications Act gives the FCC clear authority to oversee the operation of broadband networks, and has the power to intervene in its effort to preserve competition and safeguard consumers,” he says in a statement.
“I plan to introduce legislation in the coming days that makes this crystal clear, and look forward to working with the Commission to ensure consumers are protected.”
Another option – clumsy but better than nothing – is to start examining ISPs’ activities on a case-by-case basis – something the FCC’s done in the past. There is, in fact, an argument that the ruling gives the FCC more powers than it’s ever had before, with the decision that the Commission does have statutory authority to “enact measures encouraging the deployment of broadband infrastructure” and “promulgate rules governing broadband providers’ treatment of internet traffic” under Section 706(a).
Indeed, in his dissent, Judge Laurence Silberman expressed concern that the section represented “carte blanche to issue any regulation that the Commission might believe to be in the public interest.”
Certainly, according to Geoffrey Manne, lecturer in law at the Lewis & Clark Law School and Berin Szoka, president of tech policy think tank TechFreedom, the FCC has the right to require that any deals between broadband and content providers be reasonable and non-discriminatory, as long as it doesn’t treat broadband providers as common carriers.
“But even that limitation could easily be evaded if the FCC regulates through case-by-case enforcement actions, as it tried to do before issuing the Open Internet Order,” they write in an analysis of the decision. “Either way, the FCC need only make a colorable argument under Section 706 that its actions are designed to ‘encourage the deployment… of advanced telecommunications services’. If the FCC’s tenuous ‘triple cushion shot’ argument could satisfy that test, there is little limit to the deference the FCC will receive.”
Indeed, they go further, suggesting that the FCC may now have authority over the internet of things: “Section 706 covers ‘advanced telecommunications’, which seems to include any information service, from broadband to the interconnectivity of smart appliances like washing machines and home thermostats,” they say.
Pushing things a bit? No doubt – and it would be interesting to see what happened if the FCC did attempt to exert authority in this way. But what’s clear is that it does still have some ammunition in its arsenal. The war’s not over yet.
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