In what is being labelled a major setback for free speech and open internet, a Washington DC appeals court has ruled that the country’s telecoms regulator cannot force internet service providers to treat the traffic on their network as equal, regardless of the source, platform or content.
The ruling comes in the case of Verizon v. Federal Communications Commission, in which the Court has ruled that that the latter does not have the right to force internet service providers to treat all web traffic the same.
While Verizon promises that the ruling “will not change consumers’ ability to access and use the Internet as they do now”, it is nevertheless understood as a dangerous legal precedent for open internet by many others.
Decision on open internet on the basis of a technicality
The Federal Communications Commission (FCC) is an independent agency of the United States government and is, among other, tasked with overseeing the provision of wire and radio communication services.
Companies that fall under the scope of FCC supervision are seen as ‘common carriers’, namely companies that are transporting ‘goods’ to individuals or companies, and are responsible for said ‘goods’. This is, for example, the designation given to telephone service providers.
Among the duties imposed by such FCC supervision is (or rather was) the obligation of net neutrality, which was introduced in the 2010 FCC Open Internet Order. The regulation contains three specific rules for ISP to manage their networks: transparency of network management practices, no blocking of lawful content, and no unreasonable discrimination in transmitting lawful network traffic.
At the same time as net neutrality is quickly becoming a reality of European telecommunications, the American open internet provisions saw fierce opposition by the Republican Party and several ISPs, who felt that the government should not regulate the Internet, but that the Web should be left to flourish unregulated.
Internet service provider Verizon thus challenged the validity of the Open Internet Order in the DC Circuit Court of Appeals in 2012, citing that “the Commission lacked affirmative statutory authority to promulgate the rules”.
The Court has now ruled in favour of Verizon, and did so on a technicality; in fact the Court stated in its ruling that “broadband providers represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment.” In spite of this, under the U.S. 1996 Telecommunications Act, ISPs are not common carriers, found the Court, and therefore the FCC does not have the authority to force those companies to treat all traffic equally.
Comments Aphaia’s founder Dr Bostjan Makarovic:
“Because the Telecommunications Act 1996 is outdated, the FCC rulings on new technology matters such as broadband or internet regulation always need to be squeezed into ancient concepts, leaving too much to discretion and ultimately the courts. The FCC as the regulator would need much better statutory tools in order to do their job in a modern economy.”
