Noise Filter: Net Neutrality, the FCC and ISPs

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On Monday, Verizon took the Federal Communications Commission to court to appeal the Open Internet Order. The FCC adopted the order in December 2010 to make ISPs treat all data on the Internet equally.

The outcome of the case could have broad implications on the Internet and the FCC’s ability to impose regulations on Internet service providers.

According to The Hill, the regulations were one of the crowning achievements of FCC Chairman Julius Genachowski, who stepped down this year.

The purpose of the rules is to prevent Internet providers from speeding up access to websites they own or to sites that pay special fees. There is also concern that, without the rules, Internet providers could slow down or block particular sites. Supporters of the rules argue that all websites should be treated equally, whether they are large corporate services or small personal blogs.

In a TIME report, Sam Gustin breaks down Verizon’s arguments, starting with the argument that the “FCC lacks the authority to enforce net neutrality because Congress didn’t grant the agency the ability to do so.”

Verizon further argues that the net neutrality rules violate the company’s First Amendment rights. Because broadband companies transmit their own speech as well as the speech of others, the providers “possess ‘editorial discretion,’” Verizon asserts. “Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others,” the telecom giant argues. “Although broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner, they nonetheless possess discretion that these rules preclude them from exercising. For example, they could distinguish their own content from that of other speakers or offer that capability to others.”

Forbes’ contributor Wayne Crews argues that the laws around neutral pipes reflects the “blindness of political regulation, how the very ones in charge of communications policy can most threaten it.”

There’s a greater, vastly more important task at hand for FCC and other regulators that wasting decades on “neutrality”: To demolish regulatory silos in order to foster cross industry partnerships (Internet, power, water, rail, sewer) to fund cripplingly expensive national infrastructure development. (Much better than an infrastructure bank, by the way.)

Net neutrality and similar schemes like compulsory licensing in technology and antitrust predation are not components of free competitive enterprise, and are inoperable without permanent, priestly regulatory commissions.

Katy Bachman of Adweek says that there is no guarantee that the court will rule in favor of the FCC, but the fact that there are two Democrats on the three-person panel could be a good thing for the FCC.

If the court strikes down the rules, the FCC would have to either appeal or bank on Congress giving it new authority. The court could also just send the FCC back to the drawing boards to craft better rules.

One way or another, Congress may ultimately get involved. There’s been a lot of talk on the Hill about revisiting the nation’s communications laws, which are gathering mold as technology races ahead. Even if Congress does, it won’t happen quickly. The court’s decision could come as soon as two months.

Finally, Joshua Brustein of Bloomberg Businessweek says the ruling represents a major step in the years-long battle on net neutrality.

If the judges aren’t persuaded by the FCC, it could have an impact far beyond net neutrality. The commission is taking on all kinds of Internet-related issues—like privacy, fraudulent billing, and universal broadband access. Stripped of its authority to pursue any of this, the government would be losing a fair chunk of its overall power. “This is not a narrow question about net neutrality, it’s a much broader question about the FCC’s relevance,” says Gigi B. Sohn, the head of the advocacy group Public Knowledge.

Have you read any interesting commentary on the ruling? Share the link in the comments.

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    'With great power comes great responsibility.' While Spiderman is probably not often cited in courts, his principle may apply here. Verizon here argues that it has great powers and discretion, while Internet Service Providers in general argue elsewhere that they have neither the duty nor means to regulate what they transmit, in regard to copyright and censorship, for example. Verizon's claim to be like a newspaper may come back to haunt it.