When the Federal Communications Commission (FCC) adopted the Open Internet Order in 2010—forbidding Internet Service Providers from blocking services or charging content providers for access to the network—there was one thing the commission was careful not to do.
What the FCC did not do is declare that Internet service providers are “common carriers,” a classification that could have opened the door to even stricter regulations. Pre-dating the Internet by centuries, common carriage is “this age-old doctrine that says the person doing the shipping for you can’t mess with the contents,” said Matt Wood, policy director for Free Press, a group that advocates for “universal and affordable Internet access.”
The FCC has avoided calling ISPs common carriers for more than a decade, favoring a “light touch” regulatory approach that could protect consumers while (hopefully) appeasing political foes of net neutrality, Wood said.
That approach may be backfiring. Verizon recently challenged the legality of the Open Internet Order, and yesterday the company argued its case in front of a three-judge panel at the US Court of Appeals for the District of Columbia Circuit. A Verizon win would allow ISPs to block content or charge providers for a faster lane to customers.
Judges are skeptical of FCC reasoning
Wood is hoping the judges will uphold the Open Internet Order, but he believes that the FCC would be having an easier time defending itself if it declared ISPs common carriers in the first place. Most of the two-hour court session focused on the common carriage issue, he said.
The concept that “the person doing the shipping for you can’t mess with the contents” is “what I think most people want to have out of their Internet service if they’re getting it from Verizon or from AT&T or Comcast or somebody else who provides that wire,” Wood told Ars. “They don’t want to give in to Verizon’s claim that the ISP somehow has the right to edit the Internet and pick and choose where you can go and what you can say. The FCC has left that in doubt too much from its authority choices.”
While not proclaiming ISPs to be common carriers, the commission said it can make rules that sound similar to common carrier regulations because of the FCC’s legally mandated responsibilities to promote broadband deployment and adoption, to make sure video services are competitive, and to make sure wireless carriers serve the public interest.
Wood and others who observed the judges’ interactions with Verizon and FCC lawyers yesterday agree that the judges expressed skepticism about the FCC’s argument that the Open Internet rules don’t amount to common carriage-style regulations. Telecom analysts at Stifel sent a note to clients saying that the court seems likely to let ISPs charge for premium Internet links.
“We believe a DC Circuit panel majority signaled today at oral arguments that it’s inclined to pare back FCC Open Internet rules in a way that would allow cable and telco broadband providers to charge Internet edge providers for improved connections to broadband customers,” Stifel wrote. “At the same time, the panel seemed inclined to uphold the FCC’s authority to regulate broadband to some extent. … Such an outcome could give telcos and cable new flexibility to strike paid-prioritization deals for offering better service to Internet edge providers (e.g., Google, Amazon, Netflix), which could also include media companies (e.g., Disney, Fox, CBS, Viacom, Time Warner Cable). Whether it would be good or bad for edge/media providers would depend on their business plans and financial wherewithal, but it could create faster ‘toll’ lanes that give big edge players advantages over upstarts.”
Full Story: FCC’s wishy-washy rulemaking might doom net neutrality in court | Ars Technica.