Denver-federal-courthouse

A District of Columbia Circuit federal appeals court today shot down the Federal Communications Commission’s attempt to impose Net Neutrality rules on broadband providers. This is bad news for all online advocates hoping to maintain open Web browsing standards.

Net Neutrality is one of those issues that is hampered with endless legal jargon. Thus it’s unsurprising that it isn’t one frequently written on newspapers’ front pages. At the same time, the way broadband providers are regulated affects anyone who uses the Web.

For those who are unclear on the debate, Net Neutrality is meant to ensure that all information sent on the Internet is treated equally. If online providers aren’t regulated, some fear they could act in a shady manner. For example, ISPs have been working to allow for online “fast lanes.” The lanes would let sites that host more content than others pay the ISPs more money in order to ensure speedier access. In essence this would commodify online access speeds, favoring traffic to those who pay more — something that has never happened before. This is possible because broadband Internet is not considered a common communication service under current legislation. This means that broadband providers are not held to the same tight regulations that services like landlines are.

The FCC, along with President Obama, has been working to implement a Net Neutrality regulatory framework. In 2010 the FCC passed “open Internet” rules to ensure that all content diffused on the Internet was treated equally.

Today, however, the appeals court ruled that the Commission overstepped its bounds when it regulated broadband companies as ‘common carriers.’ “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 as such,” Judge David S. Tatel wrote.

Given that broadband isn’t given a common carrier classification, theoretically it has the right to favor content, which otherwise would be considered discriminatory. But while reclassifying broadband as a common service sounds simple enough, the political upheaval necessary to do so would be gargantuan. Lobbies from large ISPs like Comcast and Verizon, as well as many prominent GOP leaders, have been actively fighting this. The FCC tried to create a loophole of sorts by imposing open Internet regulations on broadband that didn’t require a reclassification. Ultimately, it didn’t quite work, as today’s ruling evidences.

This is a huge blow to the idea that all content diffused on the Web should be created equally. Yet, all may not be lost. For example, when the FCC first unveiled its proposed rules for Net Neutrality, organizations like the Electronic Frontier Foundation were dubious. In a blog post from 2009, EFF’s Corynne McSherry wrote, “Many have overlooked the fact that this rule making is built on a shoddy and dangerous foundation — the idea that the FCC has unlimited authority to regulate the Internet.” Perhaps this could lead to a better formulation of Net Neutrality regulation on the FCC’s part, one of which the EFF could approve.

To add credence to this, law professor Susan Crawford took to Reddit to hold an AMA along with FreePress’s Josh Levy and professors Tim Wu and Marvin Ammori. All four meticulously explained what the decision meant, and how current legal battles led up to it. Additionally, Professor Crawford saw a potentially light coming out of the rubble. “The house of cards has fallen,” she wrote. “Pretending to deregulate with one hand while regulating (Open Internet Rules) with the other is not going to work. FCC will need to reclassify.”

So maybe, in the end, Net Neutrality will end up with a stronger hand. That will take years, of course, and endless bipartisan political wrangling. In the interim, we’ll just have to hope that ISPs won’t wreak too much havoc.