In 1999, I was talking to a friend about my frustration at finding information to help with a new project. He said, “Use Google. You can find anything there.”
“What’s a Google?” I asked.
Yes, boys and girls, there was a time that Google didn’t exist. It would take me a few years before I would start using it as a verb, as I was like many that didn’t believe that this new search engine with the motto of “don’t be evil” would be able to top the awesomeness of Yahoo!. It all seems laughable now.
Today, a U.S. Appeals Court may have prevented the next Google from ever making its mark.
One of the key elements of Internet success is people being able to find and access the content. The technology to download or stream music and video has long been available, but it didn’t become a viable business until access to high speed Internet became more commonplace for the general public. When Larry Page and Sergey Brin, creators of Google, began their work to organize the infinite amount of information on the web, they needed people to be able to access their search engine.
In Verizon v. Federal Communications Commission, the U.S. Court of Appeals in Washington D.C. has struck down the FCC’s Open Internet Rules. Commonly known as net neutrality, the FCC rules, created in 2010, require broadband providers to provide customers with equal access to all legal content. In other words, they are not allowed to speed up or slow down access for certain content providers in order to make it easier — or harder — for customers to access their sites. The rules allow the providers to manage their networks from illegal activity, i.e. spammers, but they are not allowed to block access to sites that are deemed lawful.
Verizon appealed the FCC decision, claiming that the rules unfairly required them to carry all content and no cost. Furthermore, they claimed, the FCC was making rules for problems which did not exist. In other words, the FCC had to prove that broadband carriers were blocking sites, etc. before they could actually make rules not allowing them to do so. Until then, according to Verizon, it is broadband owners’ First Amendment Right to use their “microphone” to say what they want by allowing the content they deem fit and manage their networks accordingly.
The U.S. Court of Appeals agreed.
The court’s ruling was based on a reclassification of broadband services that was done by the FCC in 2005 during the Bush administration. At that time, the FCC reclassified DSL as an information service instead of telecommunication service. Cable modem providers had already been classified as such. This was significant as it gave the FCC less regulatory authority. Telecoms have strict conditions, including providing services in a nondiscriminatory manner and treating similar customers equally. Due to this reclassification, the court ruled that the FCC had no authority to create specific rules that governed broadband operation.
“Even though the commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates,” Judge David Tatel said.
Supporters of net neutrality have long argued that without the FCC rules, content on the Internet would be available to the highest bidder. Websites could market themselves as the fastest on the Internet, because they would have paid a premium to Verizon or other companies to make that happen. This, of course, would put nonprofits or startups at a disadvantage.
Startups like Google was 15 years ago.
In a statement after the ruling, Verizon’s general counsel tried to assure critics by saying the way consumers access and use the Internet will not change. Except it already has.
AT&T announced last week that it was trying a new program which allowed content providers to pay a premium to have access to their sites not count towards AT&T customers’ data caps. In other words, Amazon could pay a price that would allow AT&T mobile users to shop on their site and not worry about using up their allotted data. The idea, according to AT&T, is that customers can enjoy greater access without greater cost. Of course if the sites you frequent are smaller and can’t afford to pay AT&T’s price, well, you’ll have to pay attention to that data cap.
FCC Chairman Tom Wheeler said today that the FCC “will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.”
There are some options.
As Chairman Wheeler has said, they can appeal. However, this is the second time they’ve lost in court and any action by the Supreme Court, including refusing to hear the appeal, could make the courts’ rulings permanent without Congress intervening. Congress can amend the Communications Act and require stricter regulatory control for broadband carriers and other information services providers. However, with the Republican controlled House and many in Congress a target of the providers’ lobbying efforts, this seems highly unlikely. The FCC can also rewrite the rules more narrowly, something that Democratic members of Congress have already said they are pushing to be done.
The simplest solution is for the FCC to do what they did in 2005 and reclassify broadband as a telecommunication service, bringing them under its stricter authority. Thus far, however, they have been unwilling to do so. The FCC believed that current law gave them the authority to create the rules. Furthermore, the reclassification only works for as long as whoever is in charge of the FCC supports it, making it subjective to political whims.
It is still too early to say how this will turn out. Just in case, the creators of the Next Big Thing on the Internet better move a little bit faster before the gates of access close.