Net Neutrality Is Not Dead

The big questions about long-term control of the Internet may yet end up in the courts, but that isn't what was decided in Comcast v. FCC

On April 6, the U.S. Court of Appeals in Washington ruled that the Federal Communications Commission had misused its authority to control traffic on the Internet. To casual observers -- I was one -- the 3-0 decision by Judge David S. Tatel, a distinguished, progressively minded jurist with seventeen years on the bench, seemed like a serious setback to the concept of "net neutrality," the doctrine that requires Internet service providers to treat all content equally.

Like so many arguments about protocol in the digital era, the layman in this case comes into the middle of a complex debate raging among engineers, business moguls, techie visionaries, populists, politicians, and regulators. With limited knowledge and understanding, an outsider has to choose where virtue resides in determining oversight of the Internet, an unprecedented convergence of communications, commerce, entertainment, and information that is on the way to surpassing telephones, radio, television, and postal mail in the infrastructure of the national economy. A key explanatory sentence in The New York Times story on the opinion said: "The decision will allow Internet service companies to block or slow specific sites and charge video sites like YouTube to deliver their content faster to users."That certainly sounded ominous, and was represented as such in commentary on the decision. A statement from Josh Silver, executive director of Free Press, an admirable group that advocates on behalf of the widest possible access to the Web, was especially alarming: "It is truly remarkable: the government agency that is charged with overseeing the nation's communications infrastructure now has no authority to regulate broadband -- the primary communications platform of the 21st century. While this would seem to be a belated April Fool's joke, it's not. It is the result of failed Bush era (de)regulatory policies and a judicial system that is increasingly friendly to industry." In The Washington Post, columnist Steven Pearlstein wrote, "There's a lot of talk these days about how Washington has become dysfunctional. While most of the focus is on Congress...another big culprit is the U.S. Court of Appeals for the District of Columbia Circuit, which over the past decade has intimidated, undermined and demoralized the regulatory apparatus."

I am in no position to determine the validity of Pearlstein's sweeping denunciation of the D.C. Circuit, always described as the second most important court in the country after the Supreme Court. But I couldn't imagine that Tatel (who is a friend) would do away with net neutrality and unleash forces of untrammeled greed and exploitive favoritism on the Internet. And as it happened, his opinion did not do anything of the sort. In 36 pages of the ruling, net neutrality is never mentioned. So what is the fuss really about?

In 2007, Comcast, the country's largest cable company, restricted access to BitTorrent, an Internet service used to send large files, a portion of which apparently are pirated films and other data. Free Press and others complained to the FCC, which ordered Comcast to disclose its procedures for managing Web flow, even though it no longer was curbing BitTorrent. Comcast complied with the directive, but appealed to the court on a variety of grounds, including that the demands were "so poorly reasoned as to be arbitrary and capricious." As a practical matter, according to The New York Times, neither Comcast nor any other large Internet provider is "currently restricting specific types of Web content" and none has plans to do so.

The issue therefore was whether the FCC had the right to tell Comcast what to do in these circumstances. The court said it did not, which is what upset proponents of mandatory oversight of an open Internet. Whatever the providers say now, goes this reasoning, there needs to be regulatory assurance that they cannot restrict access or content in the future. "If nothing is done to reinstate FCC authority," Free Press asserted, "the agency cannot carry out the Obama administration's promise to preserve net neutrality and implement a plan for national increase in broadband availability."

Significantly, the court's ruling was narrowly framed, merely stating that the FCC hadn't acted correctly within its statutory authority. Since 2002, the FCC had defined the Internet as an information service that is less regulated than a common carrier, such as telephones, over which it has much greater jurisdiction. To augment its oversight now, the FCC needs to decide how to proceed: reclassifying the Internet as a common carrier, or finding some other statutory support for taking action to assure its policy objectives. Last Wednesday, FCC Chairman Julius Genachowski told Congress the agency was still studying the court's judgment, but believed that it could proceed with its national broadband plan. Whatever Genachowski concludes, USA Today said in analyzing the options, will create "shock waves" as the players realign to protect their interests. So the U.S. Court of Appeals for the D.C. Circuit did not condemn, sideline, or endanger net neutrality. It made a legal ruling based on the facts before it, which is what courts are supposed to do.

The outcome of this saga is now consigned to the political, lobbying, and media arenas where Washington resolves disputes. The big questions about long-term control of the Internet may yet end up in the courts, but that isn't what was decided in Comcast v. FCC No. 08-1291.

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