Net Neutrality: What's at stake and what comes next

By Cale Guthrie Weissman , written on January 16, 2014

From The News Desk

Earlier this week, a ruling from the DC Circuit federal appeals court was passed stating that the FCC could no longer regulate broadband Internet providers as if they were common carriers. In essence, this meant that Net Neutrality -- the belief that all content diffused on the Internet must be treated equally -- had been struck down. Since then, swathes of articles have been published decrying the verdict and attempting to foretell what sort of future lies for the open Internet.

The most glaring truth is that, in order for any semblance of Net Neutrality to materialize, the FCC needs to reclassify broadband as a "common carrier." This will put broadband providers on par with landlines and ensure that all information will be treated equally. Therefore, ISPs will not be able to give preference in terms of online speeds to certain content providers (i.e. sites and services who can shell out more cash). At the same time, many are focusing on what the ruling means, and what sort of future it will bring. While this is helpful, it is also causing a fissure in the pro-Net Neutrality camp about how best citizens and the FCC should go forward with this movement.

One narrative claims that providers like Netflix, whose online content takes up the most bandwidth, will invariably have to pay more to stream this content. If ISPs charge for these services for the amount of bandwidth they take up, that would be likely be a hinderance to both the companies in question as well as their customers, since it will invariably lead to price increases.

Conversely, and perhaps most jarringly, are the little people at stake. An op-ed in Wired explains that nonprofits and government entities who host public documents could face the brunt of these new lack of regulations. While it's true that big private companies host a lot of data, so too do libraries and schools. Barbara Stripling, the president of the American Library Association who penned the article author, writes:

Protecting net neutrality and considering its effect on libraries isn't just a feel-good sentiment about education and innovation, however. Network neutrality is actually an issue of economic access, because those who can't afford to pay more for internet services bill will be regulated to the "slow lane" of the information highway.
Another Wired article looks at the ruling in a completely different light. Berin Szoka and Geoffrey Manne, both of the Libertarian-leaning think tank TechFreedom, see this verdict as hiding something much more grave: Even if broadband providers cannot be regulated under the auspices of common carriership, the FCC still controls the Internet. Or, as Szoka and Manne write, the agency has "new, sweeping discretion." In their words:
The only real limit [this ruling provides] is that the FCC can't overtly treat internet services like common carriers. But this limit may mean little. Indeed, the court's ruling even lets regulators assert new powers to regulate internet services well beyond broadband… Still, putting that kind of broad power in the hands of government should trouble anyone worried with the abuses of the NSA or the prospect of the International Telecommunications Union taking over internet governance.
This seems very alarming. At the same time, it is coming from the standpoint that the Internet should not be subject to any government regulation whatsoever -- an assumed stance from those with a more Libertarian ideology. While this is an interesting position to ponder, it sideswipes the reclassification issue altogether. They argue that the FCC should prioritize "actual abuses of market power," yet fail to grasp that this wouldn't be necessary if broadband was merely considered a communication service.

The Electronic Frontiers Foundation has remained generally mum about the ruling over the past few days. People, including myself, have pointed to past blog posts stating that the FCC's proposed Internet rules could be a trojan horse for overt governmental regulation, given that the way the FCC circumvented reclassification was by giving itself "unlimited authority to regulate the Internet." Yet very little has been said about this specific ruling as of late. I reached out to the organization, and a representative provided me with this response:

EFF is not surprised at the court's decision. There was much of value in the FCC's Open Internet Principles, and we still think those are a good starting point for the conversation. But we were deeply concerned that the FCC was attempting to gain broad authority to regulate the Internet. No government agency should have that authority, so we are glad this decision clarifies that. As we look toward the future, Internet users need to have a pragmatic and open discussion about ways to promote and defend a neutral Internet. In the meantime, ISPs must comply with their transparency obligations so that customers can see if their Internet providers are giving them the non-discriminatory service they expect and deserve.
This response echoes some of Szoka's and Manne's concerns about government regulation, although looks at it from a more optimistic lens. In essence, the EFF has long feared government control over the Internet, so while this decision may appear bad on its face, it does substantiate the idea that the FCC should not be blindly regulating. But the EFF has yet to weigh in about what to do, and it's time.

All of these opinions are generally advocating for the same thing: Net Neutrality. Many see the government's role in this as integral in determining how neutral the Internet can be. While the consensus seems to be that more fighting and lobbying must be done in order to ensure free and unfettered access, the divisions within the same movement are astounding. Lawyer and Stanford professor Marvin Ammouri wrote that he sees this decision as a way to "finally win the war." Reclassification is invariably one of those ways.

Until there's a set plan and understanding of what's to be done, the future of this issue will be constructed with a giant question mark. People are rallying, but there's no consensus just yet.

And, even with all of this uncertainty, it seems like consensus shouldn't be that hard to find.

[Image via Truthout]