Net Neutrality’s Not Gone Yet

Last Monday, the D.C. Circuit of the U.S. Court of Appeals ruled in favor of Big Cable. In the case of Comcast v. Federal Communications Commission, the court held that the FCC did not have the jurisdiction to regulate Comcast’s network practices. This means that Comcast and other cable companies can carry on with practices such as slowing down the Internet speeds of heavy users (read: people sharing movies on BitTorrent), or block content as they see fit.

The FCC, despite all of its good faith efforts, can’t stop it. But it’s not time to panic. Even the FCC shrugged off this ruling. Unlike many comments flying around on blogs and Twitter, the circuit court’s ruling isn’t a major blow to net neutrality. In fact, it would have been ridiculous for the court to rule in favor of the FCC. The Court of Appeals doesn’t hate net neutrality; it only interprets the law. And while the FCC presented a large quantity of Congressional statements of policy to support their claim that they had the jurisdiction to regulate Comcast, a pile of suggestions and recommendations does not replace law.

And the law wasn’t on their side, in this case. Rather than close doors, the decision just solidified the necessary course of action for the FCC to ensure net neutrality. And it needs to take action quickly. Most Internet users in America don’t download gigabytes of pirated movies every day. You probably don’t. But the court’s decision still affects you. Comcast could decide to take money from Microsoft’s Bing to block access to competitor’s search engines. Under current laws and regulations, that’s legal.

If companies like Comcast decided to take advantage of this legal opportunity, the only way for the average consumer to access the blocked sites would be to switch internet providers. They could switch providers, that is, if we’re assuming that competition between internet providers actually exists. In fact, a startling 96 percent of U.S. households have two or fewer wired broadband providers. Effectively, the court’s decision indicates that a significant percentage of U.S. households could have their internet content filtered, slowed down, and censored with no reasonable recourse. This, for all of us, is problematic.

This court ruling—by the second highest judicial body in the land—might be bad news, but it doesn’t mean that we should throw in the towel. There are many options left for ensuring a neutral, fairly administered Internet. It’s worth noting that the court’s defense of their ruling rested on the Telecommunications Act of 1934. This act established a number of benchmarks for defining forms of telecommunication services and regulating them accordingly. And it was last amended in 1996. That was just a few years after the creation of the World Wide Web and before the Internet was much of a commercial platform.

The FCC walked right in to this defeat. If the jurisdiction of the FCC is not expressly laid out by the legislative acts under which it operates, the court will not do them any favors. And since they’re drawing conclusions from laws that predate the very industry in question, it’s hard to find directly applicable language. In order to regulate Comcast and other telecommunications companies, one of two things needs to happen. Congress needs to amend or re-write the Telecommunications Act in a way that expressly delineates the power of the FCC to regulate broadband cable companies. Because these companies can be considered both “content providers” (like a cable TV company) and “telecommunications services” (like a phone company), they can slip out of regulatory grasp fairly easily, like they did this week.

As we have seen with the major bills working their way through Congress in the past year, this is no quick process. Regulating a majorly profitable industry inevitably leads to compromise and watered-down policy to pass the bill. There is no way to guarantee that a new Telecommunications Act would, in its final form, change the FCC’s power. Net Neutrality is to the communications industry what the public option is to the health care industry. No matter how good the sponsor’s intentions, it might wind up tossed from the bill after years of wrangling.

At the end of the day, the FCC only needs one thing to happen in order to regulate broadband companies: It needs to be classifying broadband companies as telecommunications providers so that it can regulate them more effectively. This re-classification would ensure that the FCC could control Comcast’s neutrality practices, in the same way that the FCC currently maintains the neutrality of our country’s telephone lines. To do this, the FCC needs only to change its own policy—an option that is far less contentious than re-writing the Telecommunications Act. No doubt, this reclassification would be hotly contested in the courts. But unlike the case we just saw rule in Comcast’s favor, perpetual failure to regulate broadband isn’t a foregone conclusion.

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