Author: Juan Carlos Bagnell

I’m disappointed, but I can’t say I’m terrifically surprised.

Back in September Verizon filed a claim against the FCC’s Open Internet Order, claiming the FCC was infringing their First Amendment rights to degrade the quality of service for their competitors services and products. In today’s ruling, it seems the courts largely questioned the FCC’s authority to manage broadband networks.

That said, even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates. 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.

Not all of the OIO was scrapped however. The section dictating that carriers must disclose when they throttle or degrade service remains, as there were plenty of instances to draw upon where carriers had acted to disrupt services. So now Verizon can wreck a competitor’s service, but at least now they have to let you know they did it. How helpful.

In support of its conclusion that broadband providers could and would act to limit Internet openness, the Commission pointed to four prior instances in which they had done just that. These involved a mobile broadband provider blocking online payment services after entering into a contract with a competing service; a mobile broadband provider restricting the availability of competing VoIP and streaming video services; a fixed broadband provider blocking VoIP applications; and, of course, Comcast’s impairment of peer-to-peer file sharing that was the subject of the Comcast Order.

That might be the most frustrating aspect of how our telecommunications networks are being managed. The courts acknowledge that abuse has occurred, and is likely to occur again, but because the FCC hasn’t been explicitly granted authority to regulate the web, we’re stuck with a gaping hole in online consumer protections.

Where do we go from here?

There’s not a lot of wiggle room for the OIO. It’s pretty much wrecked. If the Legislative arm of our government were to make the FCC’s authority in this arena explicit, we could revisit those protections. However, I think it highly unlikely that there will be any traction on granting a government commission more regulatory authority in this political climate.

There’s also the Consumer Choice in Online Video Act presented by Senator Jay Rockefeller, which reads like a watered down version of the OIO. It might be a decent stop gap measure, but House Republicans have been holding it up, refusing a vote. This industry will need something more robust to insure that the internet remains a level playing field. At some point we’ll need to just admit that allowing telecoms to manage our access to the internet and prioritize their own services over competitors, is a glaring conflict of interest. In the long term, it will be bad for consumers and bad for business.

Today’s ruling stands as yet another example of how the evolution of our technology is rapidly outpacing our legal system’s ability to adapt. You can read the ruling below. Continue reading “Appeals Court Rules Against FCC’s Open Internet Order and Net Neutrality”