A little over two weeks ago, the DC Circuit court vacated the Federal Communications Commission’s Open Internet rules stating that “even though the commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates.”
The court order further stated that “given that the commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the commission from nonetheless regulating them as such. Because the commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.”
At the heart of the FCC’s Open Internet Order were three regulations: that broadband providers are open and transparent with customers regarding the ways in which they handle traffic in their systems; that broadband operators do not block and/or favor content on their networks and that they were prohibited from discriminating against traffic on their networks. The first two were vacated by the DC Circuit court while the last remained in place.
Immediately following the circuit court’s decision, supporters of net neutrality began decrying the potential harm that could befall the Internet if the FCC does not place regulations to prevent broadband providers from choosing what content is accessible to their customers. This would affect companies such as Google or Netflix, which depend on broadband providers to reach their customers.
Lawrence Freedman, former CEO and president of WorldNet and partner at Edwards Wildman Palmer LLP specializing in telecommunications, cable, and broadcasting, believes that for now telecommunications providers will have to play the waiting game to see how the FCC will react.
“The FCC could appeal, adopt a less restrictive net neutrality rule, or take it case by case such as they did with Comcast,” he said.
On the other hand, Karen Larson, senior vice president of Critical Hub Networks and a member of the Puerto Rico Broadband Taskforce, personally believes that “the court’s recent decision on net neutrality does mean that network operators could filter, block, restrict or impact access to certain contents on the Internet, which ultimately would harm consumers, content providers and other network operators.
However, the ruling is not so much against net neutrality as it is against the FCC’s ability to impose net neutrality as long as the FCC itself classifies Internet as an information service rather than a telecommunication service. The court ruling seems to confirm that if the FCC reclassified Internet as a telecommunication service, the court would then recognize the FCC’s ability to set such rules for network operators.
Naji Khoury¸ president of Liberty Puerto Rico, considers “the decision from the federal court is really a matter of business and the government should not be a part of this. We don’t give preferential treatment to anyone on the Internet.”
“We favor giving access to every single person who wants to use it. At Liberty, we have created Internet products that cover a wide range of needs and budgets. That way, we ensure that everyone who needs to use the Internet gets to do so in a manner that fits their daily use and fits their budgets,” he said.
Freedman said “there shouldn’t be any reason that a network operator should prioritize certain content. From a strategic perspective, what we will we see generally is to stratify the tiers of services that they have. I don’t think the world is going to come to a halt.”
“I believe that the fears of the FCC are overblown. People who benefit from net neutrality are people like Gooogle. We have to let the other shoe drop, wait for the FCC’s new rules and hope they will not be as strict, as draconian as the old rules,” he said.
Larson agreed, “it will be interesting to see what path the FCC chooses now. The fundamentals of an open, unregulated internet were essential to its overwhelming growth and success. How the FCC will balance protecting consumer interests without interfering in Internet innovation and expansion will be extremely important in the immediate future.”