Will the Internet Survive as a Commons?

A federal court ruling this week opens up the door to a chilling possibility — that cable and telephone companies might be able to interfere with transmissions of Internet traffic to suit their own business purposes. Paying partners could get "fast lane" service while the rest of us are shunted into "slow lanes." Objectionable transmissions could be interfered with or blocked.

A few years ago, the FCC had cited Comcast for slowing down Internet traffic to BitTorrent, a popular file-sharing website. Comcast proceeded to sue the FCC in order to establish that the FCC does not have the authority to regulate Comcast’s "network management practices." In a unanimous decision, the U.S. Court of Appeals for the D.C. Circuit agreed.

So now what?

For the moment, the future of "net neutrality" is in suspension. There is no legal reason why Comcast and other Internet service providers cannot discriminate against types of net traffic they dislike. For example, they could legally charge a premium fee to large companies like Amazon, Google and Facebook, in order for them to receive faster, high-quality transmission of their websites — while others who don’t pay would be given inferior service.

Or Comcast could decide that it wants to slow down or ban Skype (the Internet phone service) or a CBS video streaming website, because those services are competing against its own phone or video services, or those of its partners.

This is not just a fanciful hypothetical. Comcast is seeking a $30 billion merger with NBC Universal, which would give it an enormous incentive to maximize its revenues by using its transmission "pipes" to favor its own [i.e., NBC Universal’s] content. It would have no legal requirement to give equal-quality service to everyone, including competitors and amateurs who use the Internet for non-commercial purposes.

Imagine what might have happened to upstart companies like Google or Facebook years ago if cable companies had been able to discriminate against certain types of Web traffic. They never would have gotten off the ground, or been able to develop their innovative services. Imagine if ordinary citizens’ websites were stuck on a tier of crappy service, much as local-access television is disadvantaged by inferior production quality and dial placement.

In the wake of the federal court ruling, Comcast is making a big show of its deep commitment to an open Internet. "Oh, my, we would never do something as dastardly as establish tiers of service for websites or block web traffic," they are in effect saying. "Trust us!" If you believe Comcast’s press release following the court ruling, its motives in bringing the case were entirely pure: it wanted to “clear our name and reputation." Uh, yeah.

Well, now that Comcast has struck down the FCC’s authority to impose net neutrality rules, the battle takes a more serious turn. A new legal basis for assuring "net neutrality" must be found.

Failing that, the corporate enclosure of the Internet could well get underway. It would likely be a quiet and discreet affair at first, because Internet service providers would not want to provoke a political uproar. But until legal authority for net neutrality is re-established, the Internet as a super-commons open to all on a non-discriminatory basis will be in jeopardy.

Art Brodsky, Communications Director of Public Knowledge, analyzes the situation astutely:

"By winning as big as it did, the result of Comcast’s case was that the FCC has, practically speaking, been stripped of its ability to regulate high-speed Internet access (broadband) services. That means if Comcast decided once again to throttle back the Internet traffic of its subscribers, consumers would have little to no recourse. There is no agency, no authority, which could look into a complaint and risk doing anything about it. Practically speaking (even if there is a very slim legal opening), broadband is free from regulation — a nirvana that the telecoms industry might once upon a time have gratefully accepted as its due, but now looks upon it with some trepidation because now the door has swung wide open to a full-scale discussion of bringing Internet broadband access services back under reasonable regulation."

It is highly improbable that the FCC will appeal the circuit court ruling to the U.S. Supreme Court, most observers agree. It is also improbable that Congress will want to take up the issue during the upcoming campaign season. And if it did, chances are that it would favor the cable companies and telcos (the source of so much campaign cash, after all!) rather than beleaguered consumers.

So, even though the FCC has not announced its plans, the most likely outcome is that the FCC will reclassify cable broadband as a telecommunications service — reversing a previous decision by the FCC under President Bush. This would enable the Commission to reassert its authority over network transmissions.

The whole problem arose because the FCC in 2005 classified the then-new broadband service as an "information service," which meant it was largely exempt from regulation. But there is no reason why the FCC cannot regulate cable broadband under other provisions of its legal authority. As Gigi Sohn, President of Public Knowledge, has urged:

"The FCC should immediately start a proceeding bringing Internet access service back under some common carrier regulation similar to that used for decades. Some parts of the Communications Act, which prohibit unjust and unreasonable discrimination, could be applied here. The Commission would not have to impose a heavy regulatory burden on the telephone and cable companies, yet consumers could once again have the benefit of legal protections and the Broadband Plan could go forward."

More than net neutrality is at stake here. Also implicated are the FCC’s ability to require broadband providers to disclose how fast their Internet speeds actually are; the Commission’s ability to reform the rules of a universal service fund; and its ability to set rules for privacy on the Internet.

In coming months, expect to hear a lot more from Comcast and its industry peers declaring their commitment to a "free and open Internet." Baloney. If that was the case, why did they sue to overturn the FCC’s legal authority in the first place. Oh yeah, I forgot...Comcast’s “good name.”

It’s been pointed out that the net neutrality debate has entered a new period of destabilization. The legal and political bases for open, nondiscriminatory Internet transmissions are now in play. And it’s not entirely clear who will have the last word. Which makes it imperative that the commoners make their interests loud and clear to both Congress and the FCC.