2014 / 26 January

Open Internet Legislation Overturned by USCA (and why all hope is not lost)


It’s been nearly two weeks since the United States Court of Appeals (USCA) for the D.C. Circuit overturned a key portion of the 2010 “Open Internet Order” imposing “disclosure, anti-blocking, and anti-discrimination requirements on broadband providers.”

This section stopped Internet service providers from blocking or adjusting the quality (speed and reliability) of access to certain websites or for certain customers.

Sounds like pretty common sense oversight, right? So why did the USCA overturn this piece of the law?

Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.

Full USCA Decision

Yes, that basically just means the court does not believe your Internet service provider (e.g. Verizon or AT&T) should be required to provide equal Internet access, or “net neutrality,” for all customers and to all sites.

So, what went wrong?

The trouble is that the commission called Internet service an “information” service, which Congress has said can be only lightly regulated. By contrast, the traditional telephone network is considered a telecommunications service and is closely regulated, with companies prohibited from engaging in “unjust or unreasonable discrimination” in selling those services. – The New York Times Editorial Board (Jan. 15, 2014)

Why All Hope of Open Internet Access is Not Lost

Just because there is now no regulation against service providers making deals with sites that provide services such as video streaming or online gaming for optimized access to consumers or against blocking access or slowing the performance of other sites, this does not mean it has happened or will happen.

If such actions by internet service providers were to take place in the future, FCC chairman Tom Wheeler has said he would weigh the possibilities of further action and intervention.

Further, while this key component of the law was overturned, the USCA also upheld  two other key portions:
1.

“The Commission has established that section 706 of the Telecommunications Act of 1996 vests it with affirmative authority to enact measures encouraging the deployment of broadband infrastructure.

2.

“The Commission, we further hold, has reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here—that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet—is reasonable and supported by substantial evidence.”

The Future of an Open Internet

While a disappointing decision for advocates of net neutrality, the public has so far paid little attention to this important decision. In a time where a reported 85% of all American adults are internet users according to an April – May 2013 Pew Research Center tracking survey, this may be even more disappointing then the USCA decision.

Personally, I did not hear about this decision until this past week – and that is why I felt the need get back to my blogging.

I do, however, have an optimistic view of a future where laws governing a free internet will be front and center for a new generation of Americans – those so-called “digital natives.” What do you see as the future of net neutrality in America?

More Selected Coverage and Statements:

The New York TimesBack to the Digital Drawing Board by Susan Crawford

The Wall Street JournalCourt Tosses Rules of Road for Internet by Gautham Nagesh and Amol Sharma

ReutersU.S. appeals court strikes down FCC net neutrality rules by Alina Selyukh and David Ingram 

ComputerworldAppeals court strikes down FCC’s net neutrality rule by Grant Grossman

PCWorldFederal appeals court strikes down net neutrality: What’s next? by Grant Grossman

Statement by Chairman of U.S. Senate Committee on Commerce, Science, and Transportation John D. (Jay) Rockefeller IV

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