Net Neutrality Isn’t Quite Dead Yet

But it is on life support after this week's federal appeals court ruling.

By Jamilah King Jan 16, 2014

On Tuesday, a federal appeals court issued a ruling (PDF) that’s largely being described as a big setback for open Internet advocates and users, in general. The court ruled against a Federal Communications Commission (FCC) mandate that Internet service providers must treat all web traffic equally. The move is largely being discussed as a death blow to the Internet as we know it–the place where you can log on and go to any website without your ISP putting you in a slow or fast lane and where communities of color, in particular, have been able to flex their economic and political muscle. 

The decision came in response to Verizon’s vehement objections to the FCC’s 2010 decision that all Web traffic, at least on landline computers, must be treated equally. But it was a decision that didn’t make anyone happy. Critics accused the FCC of meddling to fix a problem that didn’t exist, while even open Internet advocates argued that it left enough wiggle room for some ISP’s to unfairly charge users (which MetroPCS quickly exploited).

Mignon Clyburn, a commissioner who would later work as acting chair, said as much after the ruling."The commission has worked tirelessly to offer a set of guidelines that, while not as strong as they could be, will nonetheless protect consumers as they explore, learn and innovate online," Clyburn said, according to The Hill. Shortly thereafter, Verizon appealed the decision, which led to this week’s ruling. The company challenged that the FCC’s mandate was too vague and that its classification of the company was an overreach in first place.

U.S. Circuit Judge David Tatel wrote for a three-judge panel that the FCC tried to regulate Verizon and other broadband companies under the wrong legal framework.

"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," Tatel wrote. "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."

Translation: The FCC has not classified broadband service providers as "common carriers," like landline telephone providers. So the commission cannot legally regulate them as such.

In an e-mailed statement, current FCC Chairman Tom Wheeler wrote that the FCC will consider appealing the court’s decision.

Who Can Help the FCC? The FCC

For many observers who were following the case closely, this week’s court ruling did not come as a big surprise. For them, the ruling is the expected outcome of what happens when an agency tasked with oversight relies instead on piecemeal, middle-of-the-road policymaking. Currently, broadband Internet is not classified as a communications service under the 1996 Telecommunications Act. Instead, it’s considered an information service, which is subject to more lenient oversight. The push the reclassify broadband was an integral part of the battle leading up to the FCC’s 2010 decision, but then-chair Julius Genachowski instead opted for a "third way" compromise that eventually left reclassification off the table.

Amalia Deloney of the Center for Media Justice says that she’s confident that the commission will now move toward rectifying their approach. "I think [reclassification] is imminent," Deloney tells Colorlines. "We have tried this third [way] that Genachowski first proposed and it did not end well. As technical as it might be, this is the way that we’re going to be able to create real change."

The good news is that the commission recognizes that reclassification isn’t a radical move. In fact, Genachowski moved toward reclassification back in 2010 before deciding against it. In an town hall meeting in Oakland, Calif. last week, FCC Chair Tom Wheeler said that he would be willing to move reclassification forward.

Users of color

The issue is a particularly pressing one for communities of color, which have been adopting new technologies at a faster rate than most anyone else in the country and have used that access to engage in political action.

"Latinos and other people of color have long faced discrimination at the hands of mainstream media," says Jessica Gonzalez, the executive vice president for the National Hispanic Media Coalition. "Over the open Internet, we have been able to push back against this discrimination, tell our own stories fairly and accurately, and even earn a living. Today’s court decision jeopardizes this Internet freedom. It is up to Chairman Wheeler and the FCC to assert its authority to preserve Internet equality."

Rashad Robinson, executive director of ColorOfChange (and a board member of Colorlines’ publisher, Race Forward) added similar sentiments."Our communities rely on the free and open Internet to speak and access information without a corporate filter," Robinson said in a statement. "The court’s decision today gives a handful of major corporations — the Internet service providers we’re already paying too much to each month due to the lack of competition — license to determine for us what we can see and do online. Black folks’ ability to be heard is in real danger, and we urge the new FCC chair to take this opportunity to take a strong stand for the public he represents."