The Court Struck Down Net Neutrality, But the Open Web’s Not Dead Yet

Did net neutrality just die? While we were all sitting around having our second cup of coffee on a regular old Tuesday morning did a federal court just erode the entire internet ecosystem, stifle innovation, and doom free expression by siding with a greedy corporation? Alarmingly, the answer might end up being yes—but not just yet.

Today the US Court of Appeals of DC struck down key parts of the Federal Communication Commission rules safeguarding a neutral, open web. In its decision in the landmark case of Verizon v. FCC, the court determined that the commission is overstepping its bounds by forcing internet service providers treat all internet traffic equally, and invalidated the agency’s anti-discrimination and anti-blocking rules.

This is not good. Without net neutrality protections, telecom giants have the power to dole out access to the internet willy nilly, discriminate against the competition, give preferential treatment to companies that can "pay to play," and censor the web by throttling traffic based on their political interests.

The knee-jerk reaction is to freak out, but this dystopian portrait of the future isn't reality yet. Though Verizon stated its case on lofty, ass-backwards claims that the rules violate its First Amendment constitutional rights, the court's decision is still mostly based on a technicality.

Back in 1996 the agency classified broadband providers as “information services,” under the Telecommunications Act, instead of communication "carriers." The commission has the authority to regulate carriers, like telephones, but doesn't have juristiction over ISPs. Now the FCC's tripped up by its own Dot Com-era policy.

The court's ruling hangs on that distinction, arguably leaving the door open for the government to rewrite the law to extend its regulatory reach to ISPs. Here’s the legalese:

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.

The Open Internet Order is the FCC framework developed in 2010 to enforce net neutrality by forbidding ISPs from blocking or slowing content unreasonably. Amazingly, it was originally brought forth by Google and, wait for it, Verizon. Since then it’s been like a sort of bodyguard for the web—a protection that hopefully you'll never need to use, but you definitely still want it there.

So what's the agency's reaction to all this? FCC Chairman Tom Wheeler has said in the past that he supports the open web. But he's also suggested he's amenable to letting telecoms experiment with pay-to-play business models, and then intervening if things go south.

Wheeler said after today's ruling that he'll consider appealing the decision, which would land the critical case in front of the Supreme Court. His statement:

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. 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.

All eyes will be on the new chairman to see what he does now. Appeal? Attempt to reclassify ISPs as common carriers? Amending the 1996 Act to essentially redefine the internet to be treated like a telephone may be a long shot. It'd mean another round in the courts, and could bring about more questions than it answers. But pro-open internet lawmakers could try to push new rules through Congress—not that leaving the fate of the digital future in the hands of Congress is very comforting, even considering net neutrality was one of President Obama's original campaign promises.

In the short-term, it's likely that Wheeler will decide to watch and see what happens now that the government's regulatory grip is loosened. "He's going to allow some experimentation in service differentiation and he's going to look at it with a very hard eye," Everett Ehrlich, former undersecretary of commerce under President Clinton told me.

If things move in a direction that threatens the market or the open internet, then the FCC chairman has some political options from there, and ammo to work with.

"So I think the next move is on wheeler," Ehrlich said. "He'll allow some experimentation, but it better shine like a hound's teeth."

Watch our interview with Tim Wu about net neutrality and information empires: