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There's time to fix Net neutrality

Preston Gralla | Jan. 17, 2014
Yes, the ruling is a disaster for advocates of a free and untrammeled Internet, but not quite an unmitigated one.

Some people will tell you that the recent U.S. Court of Appeals ruling striking down the U.S. Federal Communications Commission's rules about Net neutrality was an unmitigated disaster for consumers and Internet innovation, and that over the long term it will quash innovation, cost consumers more, curtail competition, and put everyone at the mercy of big ISPs like Verizon and Comcast.

The people who say that are only half right. The ruling was a disaster, but not quite an unmitigated one. Everything Net neutrality advocates say about the long-term effects of the ruling are likely true — but there's still time to do something about it, if the FCC is willing to put up a fight. It's not clear yet whether the FCC will do that.

To understand why the ruling is potentially so disastrous, let's take a step back and look at the court ruling. The concept of Net neutrality has governed the way the Internet has worked since its inception. It means that ISPs can't discriminate among the traffic they carry, treating it all equally. For example, they can't put YouTube traffic onto a fast lane, while putting the traffic of smaller, little-known competitors on a slow-as-a-snail lane. The idea is that all traffic is created equal, and all companies and consumers get an equal shot at using the Internet's pipes.

Up until now, Net neutrality has governed the Internet because that was the Internet's founding ethos. But it has also worked that way because of a long-standing legal concept called "common carrier" that governs telecommunications and other services. Applied to Internet infrastructure, it means that all traffic must be treated equally.

ISPs have long ached to change the rules of the game. They have advocated for being allowed to deliver traffic to consumers based on how much money websites pay them — faster delivery for more money.

The first crack in Net neutrality appeared a dozen years ago. In 2002, the FCC under President George W. Bush made a decision that led in a straight line to this week's ruling to strike down the FCC's Net neutrality rules. The FCC back then decided to classify broadband as an "information service" instead of a "telecommunications service." That's important, because information services are exempt from common carrier requirements, while telecommunications services aren't. Still, Net neutrality has ruled since then.

Under President Obama, the FCC has been generally supportive of Net neutrality, and in 2010, it issued the Open Internet Order, which said that ISPs could not block traffic of any types of services and that it could not discriminate among traffic by putting some in a fast lane and some in a slow lane.


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