Handing a big victory to everyday people, an appeals court Tuesday upheld the Federal Communications Commission’s net neutrality rules.
The decision likely guarantees that the internet won’t go the route of cable television, and that we will be the ones to decide what sites and services we use online – not Comcast or AT&T.
The ruling “is a tremendous and decisive win for all Americans,” Sarah J. Morris, senior policy counsel at the Open Technology Institute, a digital rights advocacy group, said in a statement. “The court’s decision recognizes the value of an open platform over which all voices have a space and all ideas can flourish.”
But the ruling – which will most likely survive an expected appeal – is a big win for everyday citizens in another way. It shows the power that people can have when they get involved in government and the political process. In an unusual outpouring, nearly 4 million people wrote the FCC demanding an open internet. Without that public pressure, regulators wouldn’t have put in place the strong net neutrality rules that the court just upheld.
“I think the commission needed some help coming to this answer,” said John Bergmayer, a senior staff attorney with Public Knowledge, a consumer advocacy group that backed the FCC in the net neutrality case. “This is a great case study in what should be possible” when people get involved.
As recently as two years ago, it didn’t look like we would end up here. Indeed, it looked like the internet as we knew it was doomed.
Net neutrality is the principle that internet providers should treat all network traffic basically the same; they shouldn’t block, slow or speed access to particular sites or services. If you want to watch movies from Netflix over the internet connection you get from Comcast, that shouldn’t be a problem, even if Netflix competes with Comcast’s video services.
The idea that all network traffic should be treated equally has been one of the guiding mantras of the internet since its origins. But the consolidation of the communications industry over the last 20 years led to concerns that the giant broadband companies would tilt the internet in favor of their own sites and services or those of their partners – or restrict subscribers’ online activities in unfair ways.
As it turned out, those weren’t idle concerns. Comcast blocked users’ access to BitTorrent. It and other internet providers throttled Netflix in an effort to get the streaming video company to upgrade its connections to the providers’ networks. T-Mobile isn’t counting video streamed from certain sites toward users’ monthly data allotment.
Concern about activities like those led to efforts in the last 10 years to create rules to safeguard net neutrality.
But the D.C. Circuit Court of Appeals, the same court that upheld the commission’s rules Tuesday, overturned the agency’s two previous attempts to formalize net neutrality. After its second court setback, the FCC in early 2014 was considering rules that in effect would have gutted net neutrality by giving broadband providers the green light to create online fast lanes. Under such arrangements, providers like Comcast could have offered subscribers quicker or more reliable access to particular sites and services that paid Comcast for the privilege.
Such deals had the potential to undermine the open nature of the internet, allowing Comcast to pick winners and losers.
But the FCC seemed to feel that it had little choice. In overturning the commission’s second attempt at net neutrality rules, the appeals court said that if the commission continued to classify broadband as an information service, it would have to allow things like internet fast lanes.
The court made clear at the time that the FCC had another option. It could reclassify broadband as a communications service, a category over which it had far more potential authority. But the commission had long shied away from going in that direction and broadband providers were dead-set against that kind of oversight.
So fast lanes – and the end of the internet – seemed inevitable.
But what happened next should give all of us who feel powerless about the political process a little hope. People got involved. They educated themselves on the issue. They grasped the regulatory issues involved. And they pushed for change.
The FCC received nearly 4 million comments about its third set of net neutrality rules. The vast majority were from citizens urging the agency to reclassify broadband so it could put in place strong rules and bar fast lanes.
More than 100,000 citizens signed a petition urging President Barack Obama to back strong net neutrality rules, prompting him to voice his support.
And guess what? The FCC listened. It changed course, ditched the plan that would have allowed for fast lanes and got on the reclassification bus. Largely because of people power.
Now the appeals court has affirmed that decision. Although it was a 2-to-1 decision and the broadband providers and their allies will try to appeal it, it’s unlikely to be overruled.
The decision is grounded in established precedent, both from the Supreme Court and the appeals court’s own prior cases. And the FCC basically followed the advice the appeals court laid down in its previous decision. Adding to the notion that the agency got it right this time, the majority opinion, which swatted away every single one of the numerous objections made by the broadband providers and their supporters, was co-written by one of the judges who ruled against the FCC in the last go-round.
So it’s time to celebrate. The internet will remain under control of everyday users – thanks in large part to the efforts of those same users.