Advocates of a free and open Internet could see this coming, but today's ruling from a Washington appeals court striking down the FCC's rules protecting the open net was worse than the most dire forecasts. It was "even more emphatic and disastrous than anyone expected," in the words of one veteran advocate for network neutrality.
The Court of Appeals for the D.C. circuit thoroughly eviscerated the Federal Communications Commission's latest lame attempt to prevent Internet service providers from playing favorites among websites--awarding faster speeds to sites that pay a special fee, for example, or slowing or blocking sites and services that compete with favored affiliates.
Big cable operators like Comcast and telecommunications firms like Verizon, which brought the lawsuit on which the court ruled, will be free to pick winners and losers among websites and services. Their judgment will most likely be based on cold hard cash--Netflix wants to keep your Internet provider from slowing its data so its films look like hash? It will have to pay your provider the big bucks. But the governing factor need not be money. (Comcast remains committed to adhere to the net neutrality rules overturned today until January 2018, a condition placed on its 2011 merger with NBC Universal; after that, all bets are off.)
"AT&T, Verizon, and Comcast will be able to deliver some sites and services more quickly and reliably than others for any reason," telecommunications lawyer Marvin Ammori (he's the man quoted above) observed even before the ruling came down. "Whim. Envy. Ignorance. Competition. Vengeance. Whatever. Or, no reason at all."
The telecom companies claim their chief interest is in providing better service to all customers, but that's unadulterated flimflam. We know this because regulators already have had to make superhuman efforts to keep the big ISPs from degrading certain services for their own benefit--Comcast, for example, was caught in 2007 throttling traffic from BitTorrent, a video service that competed with its own on-demand video.
Amazingly, even after Comcast was found guilty of violating this basic standard of Internet transmission, the FCC greenlighted its acquisition of NBC, which could only give the firm greater incentive to discriminate among the content being pipelined to its customers.
ISPs like Comcast are only doing what comes naturally in an unregulated environment, the way a dog naturally scratches at fleas. "Cable and telephone companies are simply not competing for the right to provide unfettered, un-monetized internet access," wrote Susan Crawford, an expert on net neutrality, around the time of the Comcast case.
This wouldn't be as much of a threat to the open Internet if there were genuine competition among providers, so you could take your business elsewhere if your ISP was turning the public Web into its own private garden. In the U.S., there's no practical competition. The vast majority of households essentially have a single broadband option, their local cable provider. Verizon and AT&T provide Internet service, too, but for most customers they're slower than the cable service. Some neighborhoods get telephone fiber services, but Verizon and AT&T have ceased the rollout of their FiOs and U-verse services--if you don't have it now, you're not getting it.
Who deserves the blame for this wretched combination of monopolization and profiteering by ever-larger cable and phone companies? The FCC, that's who. The agency's dereliction dates back to 2002, when under Chairman Michael Powell it reclassified cable modem services as "information services" rather than "telecommunications services," eliminating its own authority to regulate them broadly. Powell, by the way, is now the chief lobbyist in Washington for the cable TV industry, so the payoff wasn't long in coming.
President Obama's FCC chairman, Julius Genachowski, moved to shore up the agency's regulatory defense of net neutrality in 2010. But faced with the implacable opposition of the cable and telecommunications industry, he stopped short of reclassifying cable modems as telecommunications services. The result was the tatterdemalion policy that the court killed today. It was so ineptly crafted that almost no one in the telecom bar seemed to think it would survive; the only question was how dead would it be? The answer, spelled out in the ruling, is: totally.
The court did leave it up to the FCC or Congress to refashion a net neutrality regime. The new FCC chairman, Tom Wheeler, has made noises favoring net neutrality, but he also sounds like someone who's not so committed to the principle.
In an important speech in December and a long essay released at the same time, he's seemed to play on both sides. But that won't work. The only way to defend net neutrality, which prioritizes the interests of the customer and user over the provider, is to do so uncompromisingly. Net neutrality can't be made subject to the "marketplace," as Wheeler suggests, because the cable and telephone firms control that marketplace and their interests will prevail. Congress? Don't make me laugh--it's owned by the industry even more than the FCC.
The only course is for public pressure to overcome industry pressure. That's a tough road, but there's no alternative. Do you want your Internet to look like your cable TV service, where you have no control over what comes into your house or what you pay for it? Then stay silent. If not, start writing letters and emails to your elected representatives and the FCC now. It's the only hope to save the free, open Internet.