A federal appeals court all but told the FCC Tuesday that it has no power to regulate the internet, putting large chunks of the much-lauded national broadband plan at risk. And the FCC has only itself to blame.
Telecoms and many internet activists have long argued that the internet is a developing technology that was innovating so quickly that strict regulations would hamper it. In 2005, that argument drove the FCC under the Bush Administration to win a fight in the Supreme Court for the right to deregulate broadband providers, classifying them as an information service, largely outside the FCC's power, rather than a telecommunications service that could be regulated like the phone system.
Following that win, the FCC simply issued a set of four principles of net freedom that it said it expected broadband companies to follow. They promised that broadband users could plug in whatever devices they wanted to their connection and then use whatever software or online application that they liked without interference from their provider. Those principles never went through a rule-making period, and when the FCC went after Comcast for blocking peer-to-peer file sharing services, the company sued the commission in court.
And, on Tuesday, won.
Now broadband companies effectively have no regulations that constrain them, as the FCC has left itself with no statutory means to control what telecoms do with their internet networks.
A broadband company could, for instance, ink a deal with Microsoft to transfer all attempts to reach Google.com to Bing.com. The only recourse a user would have, under the ruling, would be to switch to a different provider assuming, of course, they had an alternative to switch to.
Companies can also now prohibit you from using a wireless router you bought at the store, forcing you to use one they rent out just as they do with cable boxes. They could also decide to charge you a fee every time you upgrade your computer, or even block you from using certain models, just as the nations mobile phone carriers do today.
While this might seem like a win for the nations broadband and wireless companies, the ruling could be so strong that it boomerangs on them. For instance, if the FCC is left without the power to implement key portions of the National Broadband Plan a so-far popular idea then Congress or the FCC may have to find a way to restore power to the commission. That could leave the FCC stronger than it was before the ruling.
The option favored by public interest groups is for the FCC to take the drastic course of formally reclassifying broadband as a regulated service, reversing the position it held and defended just a few years ago.
The FCC should immediately start a proceeding bringing internet access service back under some common carrier regulation similar to that used for decades, said Gigi Sohn, the president of the pro-net neutrality group Public Knowledge. In our view, the FCC needs to move quickly and decisively to make sure that consumers are not left at the mercy of telephone and cable companies.
The FCCs own statement on the decision acknowledges it will have to do just that.
Todays court decision invalidated the prior Commissions approach to preserving an open internet, said FCC spokeswoman Jen Howard in a written statement. But the Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end.
Other methods obliquely refer to either Congress passing a law giving it the power (a process that would likely take years) or the FCC reclassifying broadband as a telecommunications service in legal terms, moving broadband from Title I to Title II of the Telecommunications Act.
Title II-type regulations should be very familiar to most Americans they are the rules that apply to phone services. For instance, phone customers have the right to attach whatever device they like to the phone network from rotary-dial machines to modems to fax machines so long as they dont harm the network. They also have the right to call anyone else in the country from friends to astrology services, and phone companies are obliged to connect the call making them into common carriers.
Phone companies that own the physical lines that connect to your house have to rent them to competing services at fair rates. They also have to provide cheap services to low-income customers subsidized by a tax known as the Universal Service Fee. And they have their prices regulated.
Telecoms and many internet activists have long argued that the internet is a developing technology that was innovating so quickly that strict regulations would hamper it. In 2005, that argument drove the FCC under the Bush Administration to win a fight in the Supreme Court for the right to deregulate broadband providers, classifying them as an information service, largely outside the FCC's power, rather than a telecommunications service that could be regulated like the phone system.
Following that win, the FCC simply issued a set of four principles of net freedom that it said it expected broadband companies to follow. They promised that broadband users could plug in whatever devices they wanted to their connection and then use whatever software or online application that they liked without interference from their provider. Those principles never went through a rule-making period, and when the FCC went after Comcast for blocking peer-to-peer file sharing services, the company sued the commission in court.
And, on Tuesday, won.
Now broadband companies effectively have no regulations that constrain them, as the FCC has left itself with no statutory means to control what telecoms do with their internet networks.
A broadband company could, for instance, ink a deal with Microsoft to transfer all attempts to reach Google.com to Bing.com. The only recourse a user would have, under the ruling, would be to switch to a different provider assuming, of course, they had an alternative to switch to.
Companies can also now prohibit you from using a wireless router you bought at the store, forcing you to use one they rent out just as they do with cable boxes. They could also decide to charge you a fee every time you upgrade your computer, or even block you from using certain models, just as the nations mobile phone carriers do today.
While this might seem like a win for the nations broadband and wireless companies, the ruling could be so strong that it boomerangs on them. For instance, if the FCC is left without the power to implement key portions of the National Broadband Plan a so-far popular idea then Congress or the FCC may have to find a way to restore power to the commission. That could leave the FCC stronger than it was before the ruling.
The option favored by public interest groups is for the FCC to take the drastic course of formally reclassifying broadband as a regulated service, reversing the position it held and defended just a few years ago.
The FCC should immediately start a proceeding bringing internet access service back under some common carrier regulation similar to that used for decades, said Gigi Sohn, the president of the pro-net neutrality group Public Knowledge. In our view, the FCC needs to move quickly and decisively to make sure that consumers are not left at the mercy of telephone and cable companies.
The FCCs own statement on the decision acknowledges it will have to do just that.
Todays court decision invalidated the prior Commissions approach to preserving an open internet, said FCC spokeswoman Jen Howard in a written statement. But the Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end.
Other methods obliquely refer to either Congress passing a law giving it the power (a process that would likely take years) or the FCC reclassifying broadband as a telecommunications service in legal terms, moving broadband from Title I to Title II of the Telecommunications Act.
Title II-type regulations should be very familiar to most Americans they are the rules that apply to phone services. For instance, phone customers have the right to attach whatever device they like to the phone network from rotary-dial machines to modems to fax machines so long as they dont harm the network. They also have the right to call anyone else in the country from friends to astrology services, and phone companies are obliged to connect the call making them into common carriers.
Phone companies that own the physical lines that connect to your house have to rent them to competing services at fair rates. They also have to provide cheap services to low-income customers subsidized by a tax known as the Universal Service Fee. And they have their prices regulated.
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