In a decision that is being recognized as potentially major in its impact, the DC Appeals Court has struck down FCC regulations on Net Neutrality, ruling that the Commission has been treating Internet service providers as common carriers even though ISPs are not properly considered such by law.
Proponents of Net Neutrality are already expressing fear that the decision could open the way for the biggest service providers to charge more to Web content providers in return for preferential traffic handling, potentially squeezing out small websites and favoring the giants (as well as the ISPs' own content operations).
The court identified the concern that leads advocates to support Net Neutrality:
Proponents of net neutrality--or, to use the Commission's preferred term, "Internet openness"--worry about the relationship between broadband providers and edge [i.e., content] providers. They fear that broadband providers might prevent their end-user subscribers from accessing certain edge providers altogether, or might degrade the quality of their end-user subscribers' access to certain edge providers, either as a means of favoring their own competing content or services or to enable them to collect fees from certain edge providers. Thus, for example, a broadband provider like Comcast might limit its end-user subscribers' ability to access the New York Times website if it wanted to spike traffic to its own news website, or it might degrade the quality of the connection to a search website like Bing if a competitor like Google paid for prioritized access.
But the issue was whether the FCC's preferred solution to this problem--requiring ISPs to handle all traffic equally--is allowed under the applicable laws. And the Court's majority wrote that, "We think it obvious that the Commission would violate the Communications Act were it to regulate broadband providers as common carriers."
So the Court tasked itself with concluding whether the FCC's Open Internet order (aka Net Neutrality) does, in fact, treat ISPs as common carriers--and they concluded that it does. As a result, the Court threw out the FCC's rules requiring ISPs not to discriminate in handling traffic from different sources, and also not to block traffic from content providers offering legally-permissible content.
It's hard to believe the case won't be appealed to the U.S. Supreme Court, but of course whether it's heard there is anyone's guess. In the meantime, the Court sent the matter back to the FCC "for further proceedings consistent with this opinion."
On Twitter, David Rohde of TechCaliber Consulting--one of the keenest observers of regulatory and legal matters for telecom--suggested that, an "option FCC has which previous chair declined would be to reclassify Internet broadband as common carrier." In theory, that's not impossible, despite the exerpt quoted above; when you get into the weeds, the issue has to do with whether broadband Internet access is a "telecommunications" service or an "information" service. However, it's also doubtful whether such a move by the FCC would fly anyway; David Rohde concluded his tweet by noting that such a move would be, "Sure to be opposed, too."
So we'll have to wait to see what the next steps are, how close the Internet giants are to finally prevailing--and whether the dark predictions that the Appeals Court acknowledged are about to come true.
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