WHERE were you on Jan. 14, 2014?
I’m guessing you probably weren’t at the U.S. Court of Appeals in Washington, D.C., poring over that day’s ruling in the case of Verizon v. Federal Communications Commission.
But years from now, we may look back on Jan. 14 as the day we lost the free and open Internet.
Here’s what happened: The judges struck down the FCC’s “open Internet rules” — which were supposed to prevent Verizon, CenturyLink, Comcast or whoever provides your Internet service from blocking or interfering with websites, apps or services.
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The ruling means that the federal agency overseeing communications networks cannot protect users on the most important communications network we’ve got.
The ruling deals a serious blow to net neutrality, the fundamental principle that’s been part of the Internet since its inception. Net neutrality ensures that when you go online, your Internet service provider can’t decide which sites will or won’t work.
Now that the FCC is unable to punish those interfering with the Internet, Internet service providers will be able block or discriminate at will.
And that’s what they intend to do. As Verizon’s lawyer told the court several times during oral arguments: “I’m authorized to state from my client today that but for these rules we would be exploring those types of arrangements.”
What might these arrangements look like for the average Internet user? You’ll experience videos that don’t load, tweets and texts that disappear and websites that freeze and fail. The fast lanes will be reserved for the players with the deepest pockets, while the rest of us — independent content makers, upstart innovators, dissident voices — will be stuck on the slow road.
In a world without net neutrality, the Internet you know and love will start to look a lot like cable TV, where a big company picks and chooses the channels for you. Instead of the unlimited Internet, you’ll see different tiers, exclusive deals and higher bills.
The big Internet service providers will try to get companies like Netflix or Amazon.com to fork over extra tolls in exchange for good service — and they’ll threaten to block or delay their content if the companies don’t pony up.
The worse threat, though, is to startups and small businesses. They are among the biggest beneficiaries of a free and open Internet, where anyone with a new idea or new angle can innovate and find an audience without first seeking the permission of Time Warner Cable or AT&T. Without net neutrality, the next Facebook someone dreams up in a dorm room won’t ever take off.
So why would the courts toss out something that’s made the Internet such an unrivaled environment for economic innovation, democratic participation and free speech?
This is important: The judges didn’t actually rule against net neutrality as a policy matter. They ignored most of Verizon’s outlandish claims in its court filings about having a right to exercise “editorial discretion” over the entire Internet. Instead, the court determined the FCC had not “demonstrated that the regulations fall within the scope of its statutory grant of authority.”
Which is a judicial way of saying to the FCC: This whole mess is your fault.
The reason the FCC lacks the authority to make net neutrality rules is because, under the Bush administration, the agency abdicated that authority. At the urging of phone and cable lobbyists, the FCC changed the way it classified broadband under the law. That was a colossal mistake. It forced the FCC to rely on complex legal gymnastics in a failed attempt to defend its open Internet rules.
But the FCC can still clean up the mess. The FCC has the power to reclaim the authority it so foolishly squandered. In fact, under the court’s ruling, “reclassifying broadband” — and correctly treating it under the law as a telecommunications or transmission service — is the only way to stop Internet service providers from blocking websites or discriminating against apps.
There’s no legal obstacle to this path, but there are political ones. Namely, whether new FCC Chairman Tom Wheeler is willing to stand up to the powerful phone and cable lobby. And nobody knows their strength and influence better than Wheeler, who used to be the top lobbyist for both the cable and wireless industry trade associations.
A desire to avoid tangling with the phone and cable lobby, their well-fed attack dogs on Capitol Hill and the legions of front groups they finance may be why some people in D.C. are trying to spin the FCC’s sweeping loss as a victory.
They’re pinning their claims on the fact that the court did leave the agency a shred of authority when it comes to broadband deployment. But the court ruled in no uncertain terms that the FCC can’t prevent blocking or discrimination online unless it reverses the Bush-era ruling that changed how broadband was treated under the law.
Reclassifying broadband is the only thing that will shield users from corporate abuse. Pretending otherwise won’t protect the Internet.
The FCC chairman has walked a careful line since the decision came down. He has published a few cryptic blog posts but has also spoken forcefully about the need to protect the Internet’s open architecture. This much is clear: Wheeler won’t act unless he’s pushed.
And that’s where you come in. The only way to counteract the organized money lined up against net neutrality is with organized people — millions and millions of them signing petitions, pressuring the FCC, calling Congress, meeting with their representatives and, if necessary, taking to the streets.
If we all speak out now, we’ll look back on Jan. 14 in a much different way.
It won’t be the day we lost the Internet. It will be the day we took it back.
Craig Aaron, a Seattle-area native, is president of Free Press, a national nonpartisan, nonprofit group devoted to changing media and technology policy, promoting the public interest and strengthening democracy. Website: www.freepress.net