With a verdict of 3-to-0, judges of the US Court of Appeals for the District of Columbia Circuit have decided to strike down the Federal Communications Commission’s Open Internet Order, and have dealt a serious blow to net neutrality.
Net neutrality – the principle that ISPs and governments should treat all Internet traffic the same regardless of source – and the open Internet could now become a thing of the past, if the FCC does not assert is authority and reclassify broadband providers as providers of “telecommunications services,” and not as providers of “information services.”
According to the judges, who decided to uphold the challenge headed by Verizon, portions of the Open Internet Order will be vacated because back in 2010 when it was established, the FCC didn’t have the authority to issue the rules and to treat broadband providers as common carriers (the latter was, they note, a breach of the Communications Act of 1996).
Therefore, the anti-discrimination and the anti-blocking rules will be annulled, but the disclosure rules will remain.
That means that broadband providers – both fixed and mobile – still have the obligation to “publicly disclose accurate information regarding the network management practices, performance, and commercial terms of [their] broadband Internet access services.”
But, both types of broadband providers are not longer prohibited from “block[ing] lawful content, applications, services, or non-harmful devices” or from “block[ing] applications that compete with the provider’s voice or video telephony services.”
And fixed broadband providers are not longer prohibited from “unreasonably discriminating in transmitting lawful network traffic over a consumer’s broadband Internet access service.” (Mobile providers were not bound by that rule in the first place.)
“This decision means that companies like AT&T, Comcast and Verizon — which brought the lawsuit — are now free to block or slow down any website, application or service they like,” commented Craig Aaron, Free Press’ current president and CEO.
“These companies will rush to change the Web and line their own pockets at our expense — creating new tolls for app makers, expensive price tiers for popular sites, and fast lanes open only to the few content providers that can afford them.”
But the battle is not yet lost. FCC Chairman Tom Wheeler can decide whether they will appeal the judges’ decision, and ultimately submit the question for judgement before the US Supreme Court. The question remains whether the FCC will take that route.