When the US Court of Appeals for the DC Circuit struck down the Federal Communications Commission’s Open Internet Order Tuesday—dealing what is being broadly interpreted as a fatal blow to net neutrality— it highlighted the urgent need for the FCC to develop a smarter and more assertive approach to protecting citizens and consumers in the digital age.
The court rejected a 2010 move by the FCC that was intended to prevent phone and cable conglomerates from subdividing the Internet in ways that block or interfere with communications. The commission’s attempt to reassert its authority—after a FCC dominated by appointees of former President George W. Bush had weakened it—was rejected on the grounds that the approach chosen by the FCC in 2010 was legally unsound.
The FCC classified broadband providers as information service providers rather than as telecommunications service providers. The move, widely criticized by consumer groups, created openings for legal challenges to regulations. And the conglomerates that control access to broadband Internet have taken them.
The DC Circuit has rejected the commission’s approach, and struck down key regulations that were designed to preserve net neutrality. In so doing, they have, as U.S. Senator Bernie Sanders, I-Vermont, says: "(dealt) a blow to consumers and small businesses alike." Without regulatory safeguards, adds Sanders, "corporations are able to prioritize the information available to users, it stifles ideas and expression, as well as commerce and innovation.”
But the court has not said the FCC lacks authority to protect broadband Internet users.
In fact, if the FCC responds to the court ruling with a bold move to reclassify broadband Internet access as a telecommunications service that can be regulated in the public interest, it has the ability to do just that.
This is the challenge that has been presented to Tom Wheeler, the new chairman of the commission, who recently said that “it is essential that the FCC continue to maintain an open Internet and maintain the legal ability to intervene promptly and effectively in the event of aggravated circumstances.”
Following the DC Circuit’s ruling Tuesday, Wheeler indicated the commission would “consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.”
That’s a sound immediate response. It is significant that Wheeler is sending positive signals about protecting net neutrality, the principle that all Americans should have equal access to all of the information and opportunities that are presented by the Internet. Media conglomerates have for years sought to diminish net-neutrality protections so that they can prioritize some traffic—and profit by putting paying customers’s communications on an information superhighway, while consigning those who cannot write the big checks to a digital dirt road.