The Net Neutrality Battle Has Been Lost. Now We Can Win the War.

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Jan. 14 2014 2:45 PM

The Net Neutrality Battle Has Been Lost

But now we can finally win the war.

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Former FCC Chairman Julius Genachowski set net neutrailty up to fail.

Photo by T.J. Kirkpatrick/Getty Images

The D.C. Circuit Court of Appeals just issued its long-awaited decision striking down the FCC’s network neutrality rule. This is the second time in four years that this court struck down the FCC’s attempt to adopt a network neutrality rule. It is now legal for AT&T or Verizon to block Slate, your blog, or any other site.

Even though the Internet touches every part of our lives, one person is to blame for potentially destroying its potential for innovation and freedom of expression: former FCC Chairman Julius Genachowski.

The court loss was even more emphatic and disastrous than anyone expected. But this defeat comes with a silver lining: It may force the new FCC chairman to act.

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“Network neutrality” is sometimes called “Internet freedom” or “Internet openness” and is a legal principle that would forbid cable and phone companies like AT&T, Verizon, and Comcast from blocking some websites or providing special priority to others. It would forbid Comcast from blocking Facebook or Bing. It would forbid Verizon from, say, charging the Huffington Post for special service to load more quickly than Slate.

Without network neutrality, cable and phone companies could stifle innovation. Imagine if, years ago, MySpace or AltaVista had cut deals with cable companies to block Facebook and Google. Without network neutrality, telecom and cable companies could also stifle free expression. They’d have the legal right to block articles like this one.

The court today struck down the two most important net neutrality rules: one that prevented discrimination in favor of or against websites, and one against outright blocking. The only part left standing is the requirement that carriers disclose when they’re engaging in discrimination and blocking. But most users only have a choice between one cable company and one phone company, so the market alone can’t ensure network neutrality.

The war over network neutrality has raged for at least nine years and was even the centerpiece of Barack Obama’s technology agenda during the 2008 campaign. But it’s part of a broader history of fighting for freedom of expression for every new technology dating back to newspapers, telegraphs, radio, and television.

Everyone knew we were going to lose this case. In 2007 the American public discovered that Comcast, the nation’s largest cable provider, was blocking several basic, legal Internet technologies enabling peer-to-peer transactions. In response to complaints, the FCC ordered Comcast to stop. Comcast appealed to the D.C. Circuit, and that court ruled in 2010 that the FCC didn’t have the jurisdiction to act.

That decision, called Comcast v. FCC, made it clear what the FCC would need to do to have the jurisdiction to try again to enforce network neutrality. Congress gave the FCC the power to regulate “telecommunications services” (which many believe include the Internet services provided by cable and phone companies) but not “information services” (which everyone agrees includes Twitter, Google, and other services riding on top of the Internet lines). That is, the FCC can regulate cable and phone networks but not apps and websites. The deregulatory FCC of 2002, however, had a chairman who is now the head lobbyist for the cable industry, and he succeeded in removing regulations for the cable industry by classifying cable Internet as an “information service,” the category for Twitter and Slate. The court was unimpressed: If the FCC wanted to regulate cable companies but not Twitter and Slate, it had to put them in different categories, or else the FCC could start regulating Twitter and Slate.

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