On Jan. 14, 2014, the U.S. Court of Appeals for the D.C. Circuit struck down the Federal Communications Commission’s Open Internet Order in the case of Verizon v. FCC
Translation: This court just killed Net Neutrality.
Internet service providers are now able to block any website or app they want. That means they can decide what you can do and where you can go online.
This decision is a massive blow to the Internet as we know it. But the FCC has the ability to change this by reversing a series of bad decisions made during the Bush and Obama administrations and reasserting its authority to protect Internet users.
What is Net Neutrality?
Net Neutrality is the Internet’s guiding principle: It preserves our right to communicate freely online. This is the definition of an open Internet.
Net Neutrality means an Internet that enables and protects free speech. It means that Internet service providers should provide us with open networks — and should not block or discriminate against any applications or content that ride over those networks. Just as your phone company cannot decide who you could call and what you say on that call, your ISP should not be concerned with what content you view or post online.
The court’s January 2014 ruling has eliminated the only existing Net Neutrality protections on the books. ISPs now have the ability to block websites and applications.
What does this ruling mean for me as an Internet user?
The January 2014 court decision has destroyed protections that keep the Internet open and protects its users privacy and individual choice.
ISPs like Time Warner Cable, AT&T and Verizon -- the latter of which brought the lawsuit -- want to take the worst aspects of the cable TV system and impose them on the Internet.
Expect Internet blackouts that extend far beyond the popular content vendors, as smaller websites are caught in the crossfire. Tweets, emails and texts will be mysteriously delayed or dropped. Videos will load slowly, if at all. Websites will work fine one minute, and time out another. Your ISP will claim it’s not their fault, and you’ll have no idea who is to blame. You also won’t be able to vote with your feet and wallet, as there’s no competition in broadband, and all ISPs will be playing this game.
ISPs hate the idea that they’re nothing more than providers of “dumb pipes,” or connections that simply carry our traffic. Now that they are free from any legal restraints, the ISPs will try to get Internet companies to pay tolls and threaten to block or delay them if they don’t. Exclusive deals could become the norm, with AT&T exclusively bringing you Netflix while Time Warner Cable is the sole source for YouTube.
Does this mean that websites can be blocked or slowed down?
Yes! The decision gives a green light for Internet service providers to block or interfere with traffic on the Web. That means, for example, a company can slow down its competitors or block political opinions it disagrees with. There are now no protections for Internet users.
What was the FCC’s ‘Open Internet Order’?
The FCC’s 2010 order
was intended to prevent broadband Internet service providers from blocking or interfering with traffic on the Web. The Open Internet Order was generally designed to make sure the Internet remained a level playing field for all -- that's the principle we call Net Neutrality (we say “generally,” since the FCC’s rules prohibited wired ISPs from blocking and discriminating against content, while allowing wireless ISPs to discriminate, but not block websites).
In its January 2014 ruling, the court said that when the Open Internet Order was crafted the FCC used a questionable legal framework and now it lacks the authority to implement and enforce its rules.
Did the court rule against Net Neutrality?
No. The court ruled against the FCC's ability to enforce Net Neutrality. The court specifically stated that its “task as a reviewing court is not to assess the wisdom of the Open Internet Order regulations, but rather to determine whether the Commission has demonstrated that the regulations fall within the scope of its statutory grant of authority.”
When the FCC made its Open Internet rule it relied on two decisions made by the Bush-era FCC, rulings that weakened the FCC’s authority over broadband Internet access network providers. There is nothing in today’s court decision that prohibits the FCC from reversing those misguided decisions to not properly classify broadband Internet access services as common carriers services.
In fact, both today’s decision and a prior decision
by the Supreme Court clearly establishes that the FCC must “reclassify” broadband if it wishes to have any ability to prohibit practices like blocking websites or discriminating against apps.
We can still have Net Neutrality in America -- indeed we need it -- but the FCC has to re-establish its legal authority immediately.
What does ‘reclassify’ mean?
When Congress enacted the 1996 Telecommunications Act
, it rightly did not want the FCC to treat websites and other Internet services the same way it treats the local access networks that enable people to get online. Congress understood that the owners of the access networks have tremendous gatekeeper power, and so it required the FCC to treat these network owners as “common carriers,” meaning they cannot block or discriminate against the content that flows across their network to/from your computer.
However, in a series of politically motivated decisions first by FCC Chairman Michael Powell (now the cable industry’s top lobbyist) and then by FCC Chairman Kevin Martin, the FCC decided to classify broadband Internet access service as an “information service,” meaning that the law sees it as no different from a website like freepress.net or an online service like Lexis/Nexus. These decisions removed the FCC’s ability to prohibit ISPs from blocking or discriminating against online content (as well as removed the FCC’s ability to ensure ISPs protect your privacy).
The court in the Verizon v. FCC case clearly stated that the FCC lacks authority because of “the Commission’s still-binding decision to classify broadband providers not as providers of ‘telecommunications services’ but instead as providers of ‘information services.’ ”
The FCC is free to revisit those prior classification decisions. And if it rightly decides that broadband is what we all know it is -- a connection to the outside world that is merely faster than the phone lines we used to use for dial-up access, phone calls and faxes -- then it can “reclassify” the transmission component of an ISPs service back under the law as a “telecommunications service.”
Doing so would give the FCC the clear authority to adopt Net Neutrality rules, and/or intervene in the case of an ISP harming the open Internet through discriminatory practices.
What all this means is that the fix for the Open Internet is actually easy: The FCC needs to reverse its prior decisions and “reclassify” Internet access services “telecommunications services” under the law and treat ISPs at the “common carriers” they already are.
Will this court ruling affect my privacy?
Freed from any legal restraints, ISPs can monitor everything you do and say online -- and sell the information to the highest bidder. ISPs have something that companies like Google and Facebook don’t: direct control over your connections to the Internet and the devices you use to connect to it.
If this ruling is left standing, it won’t be long before your ISP requires you to connect via their list of approved devices and then uses those devices to literally watch you. Forget using encryption -- your ISP could require the key as condition of using its network.
Internet users already face a minefield when it comes to online privacy. Social networks offer constantly changing and confusing privacy controls, and “free” websites and email providers routinely harvest and sell our personal information to advertisers. The old rules were created to protect Internet users. The January 2014 decision has unraveled these protections.
And let’s not forget that the companies pushing to kill Net Neutrality -- like Verizon and AT&T -- are the very same companies that have been caught enabling unchecked spying and surveillance by the NSA and other government agencies.
What other issues could be harmed by this decision?
The recent court decision also jeopardizes the FCC’s ability to modernize its universal service program to ensure that rural and low-income users are able to access affordable broadband services. We could see the progress made toward closing the digital divide come to a full stop because of the fallout from the court decision on the FCC’s Open Internet Order.
How does this impact businesses?
Net Neutrality is crucial for small business owners, startups and entrepreneurs, who rely on the open Internet to launch their businesses, create a market, advertise their products and services, and distribute products to customers. We need the open Internet to foster job growth, competition and innovation.
Net Neutrality lowers the barriers of entry for entrepreneurs, startups and small businesses by ensuring the Web is a fair and level playing field. It’s because of Net Neutrality that small businesses and entrepreneurs have been able to thrive on the Internet. They use the Internet to reach new customers and showcase their goods, applications and services.
No company should be able to interfere with this open marketplace. Internet Service Providers are by definition the gatekeepers to the Internet, and without Net Neutrality, they will seize every possible opportunity to profit from that gatekeeper control.
Without Net Neutrality, the next Google being built in a garage somewhere would never get off the ground.
How does this impact communities of color?
The open Internet allows communities of color to tell their own stories and to organize for racial and social justice in the digital age.
The mainstream media have often failed to allow people of color to speak for themselves. Economic inequality has resulted in few broadcast stations owned by people of color. This is a primary reason why communities of color have been portrayed stereotypically in the media.
The open Internet provides marginalized voices an opportunity to be heard. But without Net Neutrality, ISPs can block speech and prevent dissident voices from speaking freely online. It denies communities of color a vital platform to shape debates on critical issues that impact the well-being of their communities.
It also harms the ability of millions of small businesses owned by people of color from competing against larger corporations online, which further deepens the economic inequality in our nation’s most vulnerable communities.
So what can be done now?
The FCC has the ability to turn this all around. It’s time for the new FCC leadership under Chairman Tom Wheeler to correct the agency’s past mistakes and to reassert the agency’s clear authority over our nation’s communications infrastructure.
To preserve the open Internet, the FCC must reclassify the broadband Internet transmission as a telecommunications service.
The FCC must use its authority to establish a solid legal footing for the vital policies and protections this court decision threatens.