Why net neutrality isn't dead.

The law, lawyers, and the court.
April 13 2010 1:03 PM

Is Net Neutrality Dead?

A calmer view of the recent ruling that hamstrings the FCC.

Illustration by Robert Neubecker. Click image to expand.

When FCC Chairman Julius Genachowski took office last summer, he was probably hoping to have fun with things like broadband plans, spectrum reform, and other stuff that excites telecom geeks. But the Bush administration had left behind a surprise. Last week, the Court of Appeals for the D.C. Circuit declared that, thanks to Bush-era rulemakings, the FCC lacked many of the powers Genachowski needs to do his job. An alarmist, in fact, might see the decision as leveling the FCC almost as cleanly as an actual bomb would.

The calmer view, however, is that the ruling doesn't really mean the death of net neutrality, the National Broadband Plan, spectrum reform, or the FCC itself. It's a pain, but mostly it sends Genachowski on a cleanup mission. The FCC is a delayed victim of Bush's Grover Norquist program. (Remember "drown [government] in the bathtub"?) Yet by statute, the agency retains enormous powers over every form of communication by wire; it simply has to turn them back on.

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Technically, it means declaring cable and DSL broadband the common carriers of our age (as Susan Crawford recently explained in a New York Times op-ed). What does that mean? To answer this, we need to go back to 1910, when, during the Taft administration, Congress passed a law declaring that the telegraph, telephone, and radio were to be treated just like the railroads, as "common carriers." The term is critical for understanding anything about what's going on today.

The idea of the common carrier stems from the premise that some businesses, by their very nature, are "public callings." Typically, such carriers of goods or people (taxicabs, railroads, ferries, bridges) and information (telegraph, telephone) have been charged with a duty not to discriminate among customers and not to charge exorbitant prices. You run into this all the time, even if you aren't aware of it: Consider that when you get in a New York taxi, the driver must charge you the posted rate and take you where you want to go. That's common carriage in action.

It's easy to understand why ancient courts thought such duties were important. Imagine yourself, late one stormy night, arriving at the sole inn in a remote town. At that point, the innkeeper has incredible power over you. He could extort whatever price you might pay. He could deny you service altogether. Or imagine a railroad that charged much less to John Rockefeller's Standard Oil than to any would-be rival in exchange for certain kickbacks. Or a telegraph owner who had a monopoly and refused to carry Democratic newswires.