The DC Circuit Court has issued a ruling in Verizon v. FCC that is likely the shape the very nature of the internet. At the heart of the case is how the companies that provide internet to consumers can control that flow of information. In 2010, the Federal Communications Commission put forth an order that required “network neutrality,” meaning that internet providers had to treat all packets delivered on the internet as equal. Today, a court ruled that the FCC lacks the authority to impose net neutrality on high-speed internet providers.
Without a net neutrality requirement, service providers could turn internet connections into a toll road, charging companies like Netflix or Google extra money to deliver their packets with a higher priority than others. This, in turn, could also slow down the loading of sites that couldn’t or refused to pay. The biggest fear is a “cable-ization” of the internet, where certain internet providers only provide service to certain sites, in much the way that cable channels are packaged and sold separately.
To understand the implications of today’s ruling, I spoke with two experts on net neutrality and free speech online. James Grimmelmann is a professor of law at the University of Maryland and directs the University’s Intellectual Property Program. Josh Levy is the internet campaign director at Free Press, which has already put out a strong statement on the court’s ruling in Verizon v. FCC.
What were the stakes in Verizon v. FCC?
James Grimmelmann: Whether the FCC’s net neutrality rules — which prevented ISPs like Verizon from discriminating against particular websites or services — were valid. With the anti-discrimination rules struck down, Verizon is free to tell a Netflix, a Google, or a Facebook, “We won’t let our customers connect to you unless you also pay us.”
Josh Levy: The stakes were no less than the future of the open internet. The FCC’s rules, while imperfect, provided some protections for internet users. With those rules thrown out, ISPs now have the power to block any online content they like. This is the opposite of the open internet. It’s a dark day for internet users.
Do you expect the case to be appealed higher, and if so, how do you see the Supreme Court ruling on it?
“With the rules thrown out, ISPs now have the power to block any online content they like.”
Grimmelmann: The FCC could ask the Supreme Court to review the case. But since the court today outlined a route the FCC could follow if it wanted to impose neutrality rules — “reclassifying” broadband service — the Supreme Court would not be likely to step in.
Levy: We’re not sure. Right now, the FCC can fix this problem by reasserting and restoring its authority over broadband connections. Today’s court decision charted a clear path for doing so.
Grimmelmann, you tweeted that the FCC got expanded authority under § 706. In layman’s terms, what does that do?
Grimmelmann In § 706, Congress asked the FCC to promote broadband deployment; the FCC can now use this mission to make regulations that encourage deployment. On Twitter, one of my followers suggested that this authority could be used, for example, to allow cities to build their own broadband networks.
Was this a total victory for Verizon, or did the FCC gain anything in the ruling?
Levy: The FCC didn’t gain anything. It lost its ability to stop ISPs from blocking or discriminating against content.
Levy, you tweeted that the rules were struck down because the FCC passed them the wrong way. What is the right way, and what would secure the rules from challenges in the future?
Levy: The right way is for the FCC to reclassify broadband under Title 2 of the Communications Act (rather than under Title 1, which it did before). This is the legally appropriate way for the FCC to assert its authority, and is the path suggested in a number of court decisions, including today’s.
If ISPs aren’t a common carrier, what are they? This quote from the ruling:
is a heck of a statement. Could ISPs be re-labeled common carriers by law?
“Economically, it shifts power and money towards ISPs and away from websites and internet services.”
Grimmelmann: The FCC has, in previous proceedings, classified ISPs as telecommunications services. It could go back and reclassify them as information services, and there’s substantial judicial support that the FCC would be within its powers to do so. But that would also subject ISPs to various other regulatory requirements, and it would be politically controversial.
Levy: Yes, easily. The FCC could, today, reclassify broadband as a “telecommunications” service under Title 2 of the Communications Act and thus reclassify internet providers as common carriers.
Much has been made of comparisons to cable vs broadcast TV in this. Does this ruling lead directly to the “cable-ization” of internet communication?
Grimmelmann: Economically, it shifts power and money towards ISPs and away from websites and internet services. But, at least in the short run, the internet will still look like the internet, rather than the much narrower and intensively programmed world of cable.
Levy: We believe that it does. Without the FCC protecting internet users, ISPs will be free to charge extra for — or block outright — Facebook or Netflix in the same way that cable TV providers offer or don’t offer FX or ESPN.