It’s finally happened. Yesterday, a decision from the U.S. Court of Appeals for the District of Columbia struck down the FCC’s net neutrality rules—the only thing standing in the way of ISPs restricting web traffic in all sorts of evil ways. For proponents of an open Internet, the outlook is bleak. But hidden within the court’s argument against the FCC’s case is the means by which net neutrality might survive in a far more definitive way than before.
First, the bad news: The floodgates are now open for private regulation of web traffic by ISPs. Providers like Verizon can now restrict bandwidth to companies like Netflix or Hulu in favor of their own ventures, or ask big content providers that get enormous amounts of traffic to pay up for the bandwidth necessary to use their services at speeds that aren’t cripplingly slow. It allows for preferential treatment and effective censorship—if your web page or service doesn’t load fast enough, it might as well not exist.
The decision also has dire implications for web entrepreneurs and the digital startup industry. As venture capitalist Fred Wilson writes, ISPs will choose preferred web content providers and establish a barrier to entry too costly for most bootstrapped startups to compete. AT&T is already doing this over mobile networks with its sponsored data plans, but yesterday’s ruling has made similar stunts over wired connections just as viable.
But an open Internet is still possible. Over at the Washington Post, Brian Fung writes that the rationale for the court’s decision lays the groundwork for the means by which we could achieve stronger regulation than currently possible.
The idea is called reclassification, and it basically transforms broadband providers from the untouchable companies they currently are into the kind of telecommunications companies the FCC regulates without question all the time, such as wireless operators.
It’s a simple tactic that is well within the range of the FCC’s power to do, but it’s one that will be met with immense opposition from industry groups. But Fung believes it’s one the FCC will try, for its own benefit if not for that of the consumer: If the FCC can’t regulate broadband access, then it risks being marginalized, excluded from playing any substantial role online where millions of Americans are increasingly spending more of their lives.
Of course, almost any course of action taken by the FCC will result in further litigation, which means Americans will just have to cope with the new status quo for the time being. But according to Bloomberg, widespread awareness of net neutrality issues will keep most ISPs from making any drastic changes to their policies for the time being.
Once the first one does, it’ll be open season.