Court Strikes A Blow Against Net Neutrality

Yesterday a federal appeals court ruled that the Federal Communications Commission (FCC) did not have the authority to regulate web traffic under current law. The decision is one of the strongest blows yet delivered against advocates of a free and open internet.

The ruling was in the specific context of a decision made by the FCC in 2008 to prohibit Comcast from slowing down access to file sharing service BitTorrent -- a program that allows users to exchange large files like music and TV shows. In 2007, Comcast had slowed down subscriber access while they were using BitTorrent due to the amount of bandwidth those subscribers were using.

For "net neutrality" advocates, the case is illustrative of what could happen if there aren't proper safeguards in place. By slowing down access to BitTorrent, Comcast demonstrated that it had the power to decide what content people had access to online. The implications of that action go far beyond that one site, and could create a precedent for having "fast" and "slow" lanes on the internet. In that situation, a company like Comcast would have new incentives to get companies to pay for preferential access.

The problem with that is that it could enshrine the "ability to pay" rather than "consumer demand" as the deciding factor in what makes a company successful. The explosive innovation of the internet is rooted in the fact that no champion is ever on firm footing. When Google launched in 1998, the market for search engines was already congested. Had the Internet Service Providers (ISPs) had the ability to make Google slower because the startup couldn't pay for preferential access, there is a good chance it would have been dead in the water.

In addition to creating new barriers to entry, differentiated speed and access could dramatically undermine content creators and citizen journalists. If MSNBC.com is free, fast and unfettered, and your average blog is slow and often down, that could have an incredibly damaging effect on the internet's great power as an information equalizer.

The actual letter of the court's ruling was not, strictly speaking, about the principles of net neutrality, but about how much authority the FCC had to reinforce those principles. During the Bush years, broadband was deregulated -- meaning that it does not fall into the same category as something like phone services, which the FCC has more ability to regulate. What's more, Comcast stopped limiting access to BitTorrent not long after it had begun and today suggests that it remains entirely committed to a free and open internet.

Still, the ruling has specific implications for the Obama administration's national broadband plan, an ambitious initiative which had intended to shift billions in federal resources from rural phone service to providing internet in under-served areas. This ruling would suggest that the FCC actually doesn't have the authority to do this.

So what now? One option is to get Congress to officially give the FCC authority over broadband, although with the congestion of issues on the legislative agenda, that avenue seems challenging. Another scenario -- ironically the most opposed by the telecoms -- is the possibility that the FCC changes the classification of broadband services to a type that they have more legal authority over.

Whatever the case, this is an issue we need to let Congress know matters to us. As Union Square Ventures' Fred Wilson wrote in a letter to peHUB: "“Until the principals of Net neutrality are embraced by the access providers — namely the right to run any application on their networks — we are at risk of ruining the atmosphere of ‘permissionless innovation’ that has characterized the first 15 years of the commercial Internet in this country and allowed us to build some of the most important new companies in the world.”

Sign the petition below to let your representatives know this issue matters to you, and stay tuned her for future news. Learn more about net neutrality at the Open Internet Coalition.

Photo credit: aperturismo