Net neutrality is about to have its day in court at last -- but that might not be a good thing for its supporters.
Back in September at the U.S. Court of Appeals for the D.C. Circuit, Verizon spoke its piece about how the Federal Communication Commission had allegedly exceeded its authority by enacting network neutrality relations on ISPs like Verizon.
If Verizon gets its way, the court will strike down the Net neutrality provisions adopted by the FCC in 2010. Those rules were set up to keep providers from creating "the equivalents of tollbooths, fast lanes, and dirt roads" on the Internet, as Marvin Ammori of Wired put it.
Verizon and many other Internet providers have been longing to put up those tollbooths and fast/slow lanes for some time now.
Verizon's argument before the court is that the FCC improperly treats Verizon's broadband service like a "common carrier" -- a utility like phone service, which is heavily regulated, as opposed to a more lightly regulated "information service." The point of the FCC distinguishing between the two, as the Washington Post pointed out in its analysis, was to "shield dynamic technology companies [such as Google] in the second category from the complex regulations that govern common carriers [such as AT&T and Verizon] in the first category."
The motives of Verizon, and most every other Internet provider, seem suspect. As far back as 2005, ISPs (AT&T, Verizon, and Comcast) were looking for ways to surcharge Web companies (Netflix, Google, and Yahoo) for the privilege of more reliably delivering their content.
In 2006, Internet providers came out in support of the Communications Opportunity, Promotion, and Enhancement (COPE) Act -- but only once the Net neutrality provisions had been gutted in the final version of bill. That sparked further clashes over the exact meaning of Net neutrality, which have since ended up in court.
Ammori is grim about the long-term prospects of Net neutrality now that it's in front of a judge. "It looks like we’ll end up where AT&T initially began, [with] a false compromise," he writes. "Web and mobile companies will live or die not on the merits of their technology and design, but on the deals they can strike with AT&T, Verizon, Comcast, and others."
But Larry Downs at Forbes takes the opposite view. A longtime critic of the FCC's common-carrier rules, he notes that Net neutrality "is not an engineering term, but a political term, and as such, nearly impossible to define." Downs believes that battles over who gets to carry whose content, and how much they can charge for it, are matters for antitrust and unfair trade law, not FCC regulations.
The Electronic Frontier Foundation, interestingly enough, doesn't have much confidence in the FCC either. Back in 2009 it expressed worry that Net neutrality could be used by the FCC as a Trojan horse. "Experience shows that the FCC is particularly vulnerable to regulatory capture and has a history of ignoring grassroots public opinion," the EFF wrote. "That makes the agency a poor choice for restraining the likes of Comcast and AT&T."
A ruling from the D.C. Circuit Court is not expected to come down until later this year or early next year. Such a ruling is unlikely to be the last word on the subject, as it could be returned to lower courts for further debate. Or it ultimately could be appealed to the Supreme Court -- assuming the SCOTUS deigns to hear the case.
In the meantime, Verizon and other ISPs will most likely continue to make end runs around neutrality rules by way of various dodges -- for example, creating preferential access for their own customers or tying monthly bandwidth caps to specific lanes of usage.
Correction: This blog as originally posted misstated the date of the hearing. The article has been amended.
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