Back to the drawing board on ‘net neutrality’ rules

The Federal Communications Commission has struggled for a decade to find a way to preserve what may be the Internet’s most important quality: that there are no gatekeepers between users and the websites they frequent. Three successive FCC chairmen have tried writing guidelines or rules to stop broadband providers such as Time Warner Cable and Verizon from playing favorites among websites or giving their own services an unfair advantage, only to run into problems when the commission tried to enforce them. On Monday, a federal appeals panel for the District of Columbia Circuit rejected the commission’s latest set of “net neutrality” rules, saying they violated federal law. There’s no easy fix, but the commission should keep trying.

The FCC’s rules had three main provisions for wired broadband providers: They could not block access to any legal content or service, they could not favor one site’s traffic over another, and they had to make clear what they were doing to reduce congestion in their pipes. Wireless broadband providers could not block legal sites either, and could not discriminate unreasonably against competing voice or video services.

That sort of unimpeded access is pretty much how the Internet has functioned since the days of dial-up modems, and it’s crucial to the dazzling innovation and technological advancements since the advent of broadband connections. Writing for a three-judge panel, Judge David Tatel accepted the FCC’s argument that the steady stream of new content and services drives the demand for Internet connections, so protecting the openness of the Net would spur the investment in broadband that Congress hoped to encourage. The problem, Tatel wrote, is that the commission’s rules put broadband providers into a tighter box than federal law allows.

Opponents of the net neutrality rules say the FCC is trying to fix a problem that doesn’t exist. But top broadband executives have repeatedly said that they want to charge tolls on the sites responsible for the most traffic, and AT&T recently announced a plan that invites sites to pay the data bill for AT&T’s customers.

The FCC could answer the court’s statutory objections by reversing a pair of rulings it made in the last decade that classified broadband as an information service, not a telecommunication service subject to far more extensive regulation. But such a step could be regulatory overkill, subjecting 21st century services to rules that date back 80 years. New FCC Chairman Tom Wheeler noted Monday that the court upheld the commission’s authority to impose some rules on broadband providers, and he pledged to keep trying to preserve “a free and open platform for innovation and expression.” Broadband providers should join in that effort, or risk devaluing their most valuable product.