On January 14, 2014, a United States Court of Appeals struck down the FCC’s net neutrality directive. This decision created quite
a stir in the tech media, and I’d like to take a look at why. Before we begin, let’s
make sure we agree what net neutrality means.

Net neutrality defined

The original intent of net neutrality was to prevent
Internet service providers (ISPs) from controlling what we, as paying members
of their services, can access. Net neutrality also leveled the playing field,
making sure ISPs did not show partiality to content providers. For example,
under net neutrality, Comcast — which has a relationship with NBC — must
provide the same level of service to ABC, a competitor of NBC. Without net
neutrality, Comcast can give NBC preferential treatment.

Don’t blame the courts

If you are thinking about blaming the courts for their
decision, don’t: Legal experts, even those in favor of net neutrality, have
said the court made the correct ruling. Why the ruling is correct harkens back
to March 2002, when the FCC decided to reclassify broadband Internet access from a
telecommunications service to an information service.

By deregulating those offering broadband Internet access, the
FCC had hoped the Internet service providers would increase their investment in
infrastructure. An unforeseen byproduct of deregulation was that ISPs began exerting
god-like control over traffic on their network, which Comcast did in 2007 when it disallowed BitTorrent traffic on its network.

Playing favorites goes against what the FCC envisioned for
the Internet. So in 2010, it once again tried to regulate what it had
deregulated in 2002 — broadband Internet access — with its Open Internet
ruling:

“The ‘Open Internet’ is the Internet as we know it. It’s
open because it uses free, publicly available standards that anyone can access
and build to, and it treats all traffic that flows across the network in
roughly the same way.”

This attempt to return to net neutrality, or Open Internet,
upset the large Telco providers, with Verizon at the forefront and eventually
taking the FCC to court. The following quote from the court’s ruling explains
the FCC’s mistake:

“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.”

What does the loss of net neutrality mean?

Getting rid of net neutrality will allow ISPs like AT&T,
Comcast, and Verizon to supply, for a price, preferential treatment to content
providers. AT&T is already doing this with its Sponsored Data service.

Sponsoring companies agree to pay AT&T so its
subscribers need not worry about monthly data limits — a digital version of
the razor/razor blade theory. Content providers willing to do this are giving
their users more or less a free data pass, so consumers will consider this a
plus. The scary downside for users is that ISPs can regulate search results and
direct queries. For example, search results from one ISP’s network could be
dramatically different from the next.

Small businesses are potentially at risk with the loss of
net neutrality. Not having the deep pockets of the larger content providers,
they may not be able to afford preferential treatment by the ISPs, potentially
losing customers who have come to expect fast service.

Options open to the FCC

It sounds simple enough: All the FCC has to do is reverse its
2002 decision, making broadband Internet access once more a telecommunications
service. Then the FCC could enforce net neutrality. But experts consider that
move a political nightmare, with Republicans in the House of Representatives
adamantly opposed to net neutrality and threatening to defund the FCC if net
neutrality returns.

A viewpoint biased toward users

I’d like to
introduce someone who has been, and I have little doubt will continue to be, an
outspoken advocate of user Internet rights: Dr. Susan P. Crawford. She focuses
on telecommunications and information law, and her book Captive Audience: The Telecom Industry and
Monopoly Power in the New Gilded Age
helped me understand the
intricacies of the net neutrality debate while preparing this article.

Your take

Net neutrality is a contentious and extremely complicated
topic. What’s more, the decisions of others will affect all of us who use the
Internet, as well as how the Internet functions going forward. I’m hoping for
our sake, they get it right.

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