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Wednesday, 15 June 2016 05:19

Big Victory for Net Neutrality as FCC Regulation Upheld

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2016June15 netneutralityUS District of Columbia Court of Appeals upholds Net Neutrality, but the battle is not over. (Photo: Free Press)

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A three-judge panel of the DC District Court of Appeals yesterday upheld the Federal Communication Commission's  (FCC) authority to regulate the internet as a "common carrier," similar to telephone service. In effect, this preserves the concept of "net neutrality," which limits the ability of internet providers to provide speed and access advantages to companies who pay higher fees. Although the corporate behemoths now dominating internet transmission (like Comcast and AT&T) plan to appeal, there's no doubt that this decision is significant.

The ruling is a major win in a struggle dating back roughly 15 years to keep the internet from turning into a mainly corporate medium, such as cable television. On Tuesday, The Washington Post described the essence of the ruling:

A federal appeals court on Tuesday upheld the government’s “net neutrality” rules, preserving regulations that force internet providers such as Comcast and AT&T to treat all online traffic — everything from Netflix and cat videos to games and downloads — equally.

The 2-1 ruling is a sweeping victory for the Obama administration and the consumer groups and internet companies that have pushed net neutrality for years. The Federal Communications Commission’s rules block internet service providers from favoring their own services and disadvantaging others; blocking other sites and apps; and creating “fast lanes” for video and other data services that pay for the privilege.

On technical grounds, the ruling upholds the FCC’s authority to regulate broadband service as a utility, much like phone service, and to forbid what it considers unreasonable practices. It applies equally to wired broadband providers like cable companies and mobile ones such as Verizon.

For years -- through two presidential administrations -- the FCC waffled about preserving "net neutrality," first attempting a relatively weak version of regulation, which didn't past muster in the courts. However, in February of 2015, the agency adopted the more stringent regulatory protections that were upheld in the appeals court yesterday.

An FCC news release issued on February 26, 2015, noted the historic passage of the strong "net neutrality" rules which were premised on reclassifying the internet in the same category as telephone service: "common carrier" status. That FCC news release explained:

Ending lingering uncertainty about the future of the Open Internet, the Federal Communications Commission today set sustainable rules of the roads that will protect free expression and innovation on the Internet and promote investment in the nation’s broadband networks....

Today, the Commission -- once and for all -- enacts strong, sustainable rules, grounded in multiple sources of legal authority, to ensure that Americans reap the economic, social, and civic benefits of an Open Internet today and into the future. These new rules are guided by three principles: America’s broadband networks must be fast, fair and open -- principles shared by the overwhelming majority of the nearly 4 million commenters who participated in the FCC’s Open Internet proceeding....

The new Open Internet Order restores the FCC’s legal authority to fully address threats to openness on today’s networks by following a template for sustainability laid out in the D.C. Circuit Opinion itself, including reclassification of broadband Internet access as a telecommunications service under Title II of the Communications Act.

Indeed, an overwhelming grassroots effort played an important role in the 2015 decision of the FCC. It was one of the many advocacy victories that are often forgotten in the relentless pace of the news cycle, but is a testament to the activism that is vital to democracy and progressive outcomes.

The FCC Open Internet Order provides many protections to access and free speech on the net, including (according to the FCC news release):

No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices.

No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.

No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind—in other words, no “fast lanes.” This rule also bans ISPs from prioritizing content and services of their affiliates.

However, it should be noted that the full DC Court of Appeals or the Supreme Court could still strike down the FCC regulation upon appeal by the large broadband carriers. In addition, the growing monetization of the internet and the increasing dominance of investor-owned sites is making it more difficult to establish a web presence and reach an audience despite regulatory requirements.

Comcast, for instance, which started as a cable TV provider, now owns Comcast Internet, NBC, Universal Pictures and other companies. The 2015 Forbes 500 indicates that "the cable giant brought in $74.5 billion in sales in 2015, an increase of more than 8% from the year before." Forbes states that as of the end of 2015, Comcast had assets of more than $149 billion.

Comcast is now investing not just in providing internet services, but in internet content. This has significant implications in how news is framed, considering that the company also owns NBC (and MSNBC, which it is migrating from being a semi-progressive channel to being a clearly centrist channel). On June 11, Fairness and Accuracy in Reporting (FAIR) ran an article identifying the irony: "Comcast-Funded Website [Vox] Plugs Comcast-Owned TV Show [The Tonight Show] Promoting Comcast-Backed Trade Pact [Trans-Pacific Partnership]." This is an example of the vertical media consolidation that even the FCC "common carrier" regulations cannot prevent. We can expect more corporate domination of the internet -- as a part of media consolidation strategies -- despite the FCC court victory.

Thus, for the moment, the internet carriers will not be able to discriminate against smaller sites and those with large bandwidth needs. However, their ability to buy up chunks of internet real estate and charge excessive fees for higher-speed consumer access to the internet will continue largely unabated.

Not to be reposted without the permission of Truthout.