In January, the U.S. Court of Appeals for the District of Columbia Circuit struck down the Federal Communication Commission’s Open Internet Order, saying it lacked justification for its anti-discrimination and anti-blocking provisions.
The FCC’s Open Internet Order of 2010 forbade Internet service providers from knowingly or inadvertently blocking or charging content providers for access to their networks.
The January ruling — which challenged the FCC’s treatment of ISPs as “common carriers” in all but name — cleared the way for pay-for-prioritization deals, such as Comcast and Verizon’s deals with Netflix, which would allow Netflix unthrottled access to the Internet other consumers would not have access to. In effect, the ruling overturned the notion of net neutrality, or the sense that all traffic on the Internet is treated the same with the same level of primacy.
“[Even] though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates,” read the 81-page ruling. “Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.”
The FCC refuses to recognize ISPs as telecommunication utilities, which would place broadband providers under the same level of scrutiny and control as telephone companies, but it maintains the authority to regulate the Internet under Section 706 of the Telecommunications Act of 1996. This “looseness” in the FCC’s rulemaking has created a situation in which many see the FCC as having nearly complete and unchecked authority in the way that both end users access the Internet and web application providers use the Internet.
An example of this can be seen in the fight between CBS — a content provider — and Time Warner Cable — an ISP — last year. Time Warner Cable rejected the licensing rate increase for CBS-produced content. In response, CBS pulled both its local and cable programming from Time Warner Cable. CBS also blocked Time Warner Cable broadband customers from accessing CBS’s web-based content — even though access to this material was never in dispute.
Meanwhile, with over 90 percent of American-produced media controlled by just six “vertical-channels,” or companies that control both the production and distribution of a product — Viacom, Time Warner, CBS, Comcast, Disney and News Corp. — the possibility of conflict and abuse is high, leading to a greater risk of government interference.
“The controversy was eventually resolved, but not before it prompted some calls for the commission to investigate supposed net neutrality ‘violations’,” wrote FCC Commissioner Michael O’Rielly in an op-ed for The Hill on Tuesday. “This pattern will likely recur as online streaming becomes even more popular. What happens under a net neutrality regime if Netflix, YouTube, or Hulu flex their muscles in the marketplace? Should the FCC similarly scrutinize their business decisions?
“The only intellectually honest conclusion for net neutrality supporters is to extend the burden to everyone: broadband providers and edge providers.”
O’Rielly argues that the FCC should wait for Congress to make regulations in regards to access to the Internet, instead of taking it upon itself to draft net neutrality rules. In giving the FCC arbitrary control of the “rules of engagement” for broadband use, O’Rielly argues that the FCC would have the freedom to interfere with the growth and promotion of application providers.
“I view edge providers as a significant bright spot in our struggling economy. They are tirelessly innovating, growing, and meeting — often exceeding — consumer expectations. So I worry that the FCC is about to go down a slippery slope that will create burdensome regulations and uncertainty for broadband providers and edge providers alike,” continued O’Rielly.
While the court ruling failed to give Verizon what it truly wanted — recognition of the company’s First Amendment rights to control the speech on its infrastructure — it did start a conversation on what is the government’s proper role in ensuring fairness of access on the Internet. Preventing the throttling and segmenting of web access by ability to pay and preference of the network owner is necessary, but consideration of the FCC rulemaking — such as the recent proposal to allow ISPs to charge “a reasonable rate” for streamlined access to the Internet by application providers — by the public and by Congress is also critical to the Internet remaining free and open to all.