Yesterday, a U.S. Appeals Court invalidated the U.S. Federal Communication Commission’s (FCC) net neutrality rules. In its ruling, the court stated that the FCC lacked the authority to prevent internet service providers from discriminating among certain types of traffic — effectively allowing providers to make pay-to-play a reality online.
This ruling is a significant blow to net neutrality, in the United States and elsewhere. The Court’s ruling creates a dangerous global precedent that places the unique character of the internet — its boldness, creativity, and diversity — at risk. And yet, by ruling selectively on the merits of the case, the Court has left the door open for possible reforms, at least in the United States.
At its core, net neutrality is the principle that internet service providers (ISPs) — such as AT&T or Comcast in the U.S. and Deutsche Telekom or Vodafone in Europe — must treat all internet traffic equally, regardless of its origin, sender, recipient, type of content, or the means used to transmit it. These principles ensure that carriers must make equal efforts to reach all points across the network, and cannot discriminate against the content their networks carry.
The root of the problem: classification and the FCC
In 2010, the FCC released its Open Internet Order, formalizing several net neutrality protections into binding regulation on U.S. ISPs. The order prevented ISPs from blocking or unreasonably discriminating against different types of internet traffic, and any attempt by ISPs to give preferential treatment to their own services on wired connections, while blocking or slowing down competing services, was a violation of the Order.
Yesterday’s ruling by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) came in reaction to Verizon’s challenge to the 2010 Order. In its ruling, the D.C. Circuit court stated,
“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. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.”
Back in the early 2000s, the FCC wrongly gave up its regulatory authority by classifying broadband providers as “information services,” rather than “common carriers.” According to yesterday’s ruling, the FCC can’t regulate the ISPs as “common carriers,” because they’re not classified that way. If the FCC changes the framework on the providers, it will have the authority it needs to ensure fair and open access to the internet for millions of users in the U.S., and help set a global precedent to protect user rights online.
What does that actually mean?
Yesterday’s decision will affect more than just people in the U.S. The precedent could reverberate globally, as countries from Brazil and Argentina to Belgium and Germany are considering net neutrality rules of their own. At the E.U. level, policymakers are currently considering a binding new regime of telecoms regulations in their effort to create a “Telecoms Single Market,” in which net neutrality principles are a hotly contested topic. The D.C. Circuit Court’s ruling may influence the debate on this proposed legislation, but not likely in users’ favor.
The absence of net neutrality rules could create a “pay to play” reality where only those businesses that are able and willing to pay ISPs can reach end users and markets. In Europe, which currently lacks comprehensive laws protecting net neutrality, multiple studies have proven discrimination has left users with few means to access the free and open internet. In Germany, for example, Deutsche Telekom has blocked Skype for its customers who use iPhones. Under yesterday’s ruling, the ISP Comcast would similarly be able to block the video-streaming site Netflix, which is a direct competitor to its own NBC subsidiary.
Most importantly, it left the FCC an escape route: to reclassify cable broadband providers as “telecommunications services” under Title II of the 1996 Telecommunications Act — as noted above, cable broadband providers are currently classified as “information services” under the definitions of the same law.
The silver lining: reclassification and more
Despite the downsides, yesterday’s ruling was not a complete loss for users. The Court chose not to rule on a number of controversial arguments and, most importantly, it left the FCC an escape route: the agency can reclassify cable broadband providers from “information services” to “telecommunications services” under Title II of the 1996 Telecommunications Act, thus reinstating their regulatory authority.
Verizon’s lawsuit had also argued that it had the right under the First Amendment’s free speech protection to engage in discriminatory practices like throttling, comparing their actions to a newspaper editor that curates content for its subscribers. Under that argument, any regulation by the FCC would be considered a “prior restraint” on speech, which is illegal under U.S. law. However, the Court chose not to rule on this argument, avoiding the creation of such a precedent.
Similarly, the Court chose not to rule on Verizon’s argument that forcing the company to carry certain traffic — like that of competitors — was a “taking” of its property against its will. If Verizon had been successful, this would have required the U.S. government to reasonably compensate the company for transmitting the parts of the internet it didn’t feel inclined to provide to its customers. The Court, did, however, rule in favor of the FCC’s “transparency rule,” which requires providers to disclose information regarding their network management practices, performance, and the commercial terms of their broadband services.
What next? Recommendations on neutrality
The FCC should immediately take steps to reclassify ISPs as common carriers and telecommunications services. But they can do more: As we recommended in our recent position paper, Net neutrality: Ending net discrimination in Europe, the following provisions should be enshrined into law:
- The internet must be kept open and neutral. Reachability between all endpoints connected to the internet, without any form of restriction, must be maintained.
- All data traf?c should be treated on an equitable basis no matter its sender, recipient, type, or content. All forms of discriminatory traf?c management, such as blocking or throttling should be prohibited.
- ISPs shall refrain from any interference with internet users’ freedom to access content and use applications of their choice from any device of their choice, unless such interference is necessary, proportionate, temporary, targeted, transparent, and in accordance with relevant laws.
- Use of packet inspection software (including storage and re-use of associated data) should be reviewed to assess compliance with domestic and international laws and norms on privacy, access to information, and free expression. By default, these types of inspection techniques should only examine header information.
- Complete information on reasonable traf?c management practices and justifications must be accessible and foreseeable to the public. Network operators should be transparent and accountable to any changes in practices.
- Non-neutral treatment of traf?c for “voluntary” law enforcement purposes must be prohibited unless there is a legal basis and predictable procedure in the jurisdiction where the restriction is being implemented.
As Sir Tim Berners-Lee, the creator of the World Wide Web, noted in his preface to our position paper, “Just as democracy depends on legislated freedom of speech, so freedom to connect, with any application, to any party, is the fundamental social basis of the internet, and, now, the society based on it.” For the sake of users everywhere, we hope the FCC rises to the challenge.