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."