There has been quite a bit of doom and gloom regarding yesterday’s decision by the United States Court of Appeals in Verizon v. FCC, however I feel there are two significant aspects of that ruling that have actually ensured a future of net neutrality. Yes, on the surface it sucketh greatly, but the more I think about the ruling, the more I believe it could hardly have gone any better for the FCC. It is pretty much the worst possible scenario for Verizon and the other Internet providers, other than a total loss on every aspect.
There are two very critical positive aspects to the ruling:
Any losses to net neutrality are either short-lived due to the second aspect, and significantly weakened by the first.
Yesterday the court ruled in favor of the FCC when it comes to providers being required to disclose any non-neutral traffic management activities:
The ruling did, however, preserve the FCC’s current power to require Verizon and other broadband obligations to disclose their activities — in other words, to reveal how they are managing traffic: “Verizon does argue that the disclosure rules are not severable, insisting that if the anti-discrimination and anti-blocking rules fall so too must the disclosure requirements. We disagree […] we are satisfied that the Commission would have adopted the disclosure rules absent the rules we now vacate, which, we agree, operate independently.” (see the full gigaom.com article)
This is actually very bad news for Internet providers in that it means those with complaints against providers may no longer have to figure out, and prove, what the providers are doing. And if the providers do more than they disclose and that is discovered (and eventually would be), then they would be found in violation of this ruling. And the second point above makes that situation very interesting.
Yesterday’s ruling also made it clear that the FCC does have the authority to regulate broadband (as well as its understood authority over carriers):
The biggest piece of good news is this: On the issue the case was supposedly about, the one with the greatest long-term significance, the FCC won. Verizon’s core argument was that the FCC doesn’t have legal authority to regulate broadband. The court’s answer was unequivocal: It does. The FCC made a sufficiently strong case, the judges said, that it could do so to promote investment in advanced communications services under Section 706 of the Communications Act. And, they continued, the FCC was sufficiently convincing that net neutrality served that goal. (see the full theatlantic.com article)
This is both critical to the long-term, as the technology changes, but also in combination with the disclosure ruling above, it means that the FCC has the authority to act when violations of the disclosure occur.
The “Net” Result
Overall, I believe this leaves Internet providers are placed in a very awkward position: they may now be able to favor their own websites and media sources over third-party ones, but they will have to reveal that they are doing that. And again for what may be their larger goal, they can now charge extra for fast, reliable service, but they have to reveal that. And the FCC still has authority over these Internet providers, and retains authority over future Internet services.
The first provider to announce different levels of service, or preferential website treatment, will likely suffer a significant PR backlash, and customers (and the FCC) may be silently thinking “Go ahead, punk. Make my day.”
Verizon’s official statement after the ruling may have been worded to try to deal with the potentially huge negative public relations reaction:
Verizon has been and remains committed to the open Internet which provides consumers with competitive choices and unblocked access to lawful websites and content when, where, and how they want. This will not change in light of the court’s decision.
Verizon seems to be saying that the court has ruled that the FCC cannot block opponents of net neutrality, however Verizon will voluntarily comply. But a skeptic’s view of the statement would highlight the key word “unblocked access”, which is very different from “neutral delivery of”, including performance differences.
Because of that wording, I remain one of those skeptics. I will accept the good news in the ruling, but we must all ensure that the disclosure aspect of the ruling becomes the primary tool in the fight to preserve net neutrality.