You’ve probably heard the words “net neutrality” being tossed around a lot lately.
That’s because on January 14, the U.S. Court of Appeals for the D.C. Circuit Court struck down the Federal Communications Commission’s (FCC) Open Internet Order, which protected net neutrality by regulating the nation’s broadband infrastructure.
The court’s ruling appeared to be the coup de grâce for the FCC, which has been fighting to regulate the internet for over 10 years.
But as it turns out, the opposite may be true. By calling out the FCC for overstepping its bounds, the court may have actually opened the door for the FCC to completely control the internet.
Worst of all, no one’s talking about it! The mainstream media is focused on the slight (but real) possibility that consumers may have to pay a little more to use services like Netflix (NFLX). And don’t get me wrong – that’s a distressing thought.
But there’s far more at stake than the price of streaming video.
Conveniently Rewriting the Rules
The FCC’s fight to regulate the internet can be traced to 2002, when the Commission classified internet service providers (ISPs) as “information service providers” and not “telecommunications carriers.”
Since then, however, the FCC has continued forcing ISPs to follow the same rules that apply to telecoms (with varying degrees of success). And now, for the first time, the court has said definitively that the FCC can’t do that.
But that’s not the whole story…
You see, in 2008, the FCC quietly reinterpreted Section 706 of the Communications Act. Sounds pretty harmless, right? But the updated version acts as a broad grant of authority for pretty much whatever the FCC wants to do.
And on January 14, when the court struck down the Open Internet Order, it also accepted the reinterpreted Section 706.
Basically, the court told the FCC: You can’t broadly regulate ISPs like telecoms, but don’t sweat it! On a case-by-case basis, you can do virtually anything you want.
As Berin Szoka and Geoffrey Manne said in Wired, “The FCC now has vast discretion, and seems unwilling to give that up.”
On top of that, Judge Silberman, who ruled in the Open Internet Order case, called any remaining limitations on the FCC “illusory.” In his dissent, he said that Section 706 “grant[s] the FCC virtually unlimited power to regulate the internet.”
Could the FCC Control Your Entire Life?
Giving sweeping power to a federal agency is never a good idea, and the FCC is no exception. The Electronic Frontier Foundation, which has long supported net neutrality, says the ruling could be a “Trojan Horse for unrestrained FCC authority to regulate the internet.”
In fact, it’s unclear why the FCC couldn’t regulate any information services, so long as it has a plausible argument that it’s boosting broadband demand. Could the FCC then rule over VoIP as well as broadband? What about smart cars? Or even entire smart cities?
It’s a scary thought, and everyone – from net neutrality advocates to venture capitalists, broadband innovators and even ISPs like Verizon (VZ) and Comcast(CCV) – should be worried.
An open internet is essential to our very way of life, from education to freedom of speech to economic growth. Handing the government the keys to common law regulation allows the FCC to wage a piecemeal campaign that slowly but surely tightens the grip of federal regulation, and that’s no good for anyone.
This commentary originally appeared at CapitolHillDaily.com and is reprinted here with permission