Be Concerned: Appeals Court Ruling Kneecaps Open Internet

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Posted on January 14, 2014, Ross Lincoln Be Concerned: Appeals Court Ruling Kneecaps Open Internet

Not to freak anyone out, but now may be a good time to think about panicking.

This morning, the United States Appeals Court for the District of Columbia struck down key Federal Communications Commission rules designed to protect net neutrality in a narrow but serious ruling that has potentially dire consequences for both average online users and smaller websites attempting to compete fairly with larger sites. The affected rules, created in 2010, were designed to ensure that broadband providers don’t implement policies intended to favor some content and service providers over others. A consortium of interested parties led by Verizon immediately moved to sue over the regulations, culminating in this morning’s decision.

What makes the decision particularly maddening is that it rests on what can only be seen as a tremendous error by the FCC. The rules were deemed unenforceable because of how the FCC has chosen to classify broadband. “Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers,” the Court said, “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.”

Why You Should Care

What this means for rank and file Internet users is that your ISP is now free to favor websites willing to pay it more money, thus ensuring better search results and even site functionality, at the expense of newer and smaller sites. Such an environment would become exclusionary for any site lacking significant financial backing. That would mean the end of smaller sites being able to build readers and grow, or of unknown creators to promote themselves. This has potential implications for readers of publications as well as the writers employed by such publications – once sites have to budget “paying for preferred access”, that means less money for stories and staff. Sorry.

For gamers, the framework could be detrimental to fan-driven or fan-centric content. File sharing sites, modding communities, even smaller size gaming services would be out-competed. Further, it would allow ISPs to pull dirty tricks like favoring in-house services over competitors unfairly. Imagine Time Warner creating its own version of Steam and then exempting it from bandwidth restrictions imposed on users when they access actual Steam. Rest assured, this kind of thing is already being contemplated. Basically, we’re talking about a narrower, less intellectually and culturally diverse internet, one far more dominated by explicitly corporate content. Welcome to McInternet.

There’s also a more insidious element to this: Such a framework would allow an ISP to favor content that supports its interests while deemphasizing content it deems contrary to those interests. This would impact company critics of course, and that would probably extend to user-driven communities, which often thrive on criticism of the very people likely to benefit from an exclusionary Internet. But it’s especially bad for political activity on a wide spectrum. Without hyperbole, it would empower Internet service providers to stifle dissent or criticism of any kind that rubs against the inclinations and values of the company or its management, without risking even the hint of censorship allegations. In short, get ready to see the Internet turn into radio after the fairness doctrine was repealed, and restrictions on how many stations a single company could own in a given market were rescinded. Online culture, brought to you by Clear Channel.

So we need to be terrified, but fortunately, if you can call it fortune, not much is likely to change in the short term, as the FCC has already vowed to appeal today’s decision. “I am committed to maintaining our networks as engines for economic growth, test beds for innovative services and products, and channels for all forms of speech protected by the First Amendment,” FCC chairman Tom Wheeler said in a statement issued shortly after the ruling. “We will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.”

For its part, aware that the case is far from over, a clearly elated Verizon quickly moved to reassure consumers it had no plans to immediately begin dismantling the Internet as we know it. In a statement, the company insisted it is committed to the concept of an open Internet, and affirmed, for now at least, that “today’s decision will not change consumers’ ability to access and use the Internet as they do now.”

A Complex Problem With No Easy Solution

What happens next is unclear at this time. The matter will inevitably reach the Supreme Court, but the current Court is difficult to predict. It hasn’t always been a friend to online rights, but recent decisions, such as the surprise upholding of the First Sale Doctrine in Kirtsaeng v. John Wiley & Sons Inc., may be reason to remain hopeful. This is assuming the Court will even decide to hear the case, but given its demonstrated interest in hashing out numerous regulatory battles, it’s not a bad bet.

Another possibility is hinted at in the court’s ruling. The court expressly upheld the FCC’s authority to regulate broadband service, and as noted above, the issue came down to a classification error. The FCC may well move to reclassify broadband providers as carriers, in order to make these regulations legal in the eyes of the court. Would they do it? Unfortunately, there are a couple of complicating factors that probably mean no. First, doing so means dealing with the fact that broadband services were classified differently from other telecom services in the first place because of a weird complexity in the Telecommunications Act of 1996.

The act classified phone service providers as common carriers, which in part prevents monopolistic control of services in a given region. It also, in essence, says that all customers must be treated in the same way. As Ars Technica noted in 2010, it means ATT has to complete all calls for all lawful customers. There is a provision allowing phone service providers to offer video services as a common carrier, but specific cable providers have never been common carriers, which while subjecting them to some greater regulations, allows much more freedom in how customers are treated. Which is why, among other things, you don’t get to enjoy boutique cable packages. As a result, when cable companies began offering Internet access, the waters were therefore sufficiently muddied that the FCC’s decision classify such service as “information” was an easy option.

It’s also worth noting, as Michael Hiltzik of the LA Times dryly reminds us in his take on this matter, the Chairman of the FCC who opted for this easily exploitable classification is now the chief lobbyist for the cable television industry. So the fix was probably in from the start.Yes, it’s true that under the Obama Administration the FCC has been a fierce advocate for consumers and for an open Internet. However, the agency had the chance to reclassify ISPs when the now-nullified rules were devised, and it didn’t. Make of that what you will.

Even if the current FCC has the will necessary to reclassify ISPs as common carriers, the current makeup of the House of Representatives and Senate, not to mention the likelihood of further lawsuits, is a strong deterrent. Not that I’m suggesting the FCC shouldn’t bother, of course, but these facts make it likely that, for now, the agency will continue to appeal this specific ruling if for no other reason than to avoid the potentially bigger minefield.

So, yes, my preference is for a reclassification, but we obviously can’t count on that. Make no mistake, while today’s ruling didn’t strip the FCC of it’s power to regulate ISPs, it poses as big a threat to online activity as anything devised by the authors of the Cyber Intelligence Sharing and Protection Act (CISPA), and the earlier related Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA). Pay close attention to the next few months, and by all means begin contacting your elected representatives. And let’s all hope this isn’t the last time we recognize the Internet.

Ross Lincoln is features editor at Game Front. Read more of his work here, and follow him and Game Front on Twitter: @rossalincoln and @gamefrontcom.

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