After oral argument in a federal appeals court last year, the Federal Communications Commission appeared unlikely to win the legal case for its Open Internet Order. That appraisal was confirmed last week, as a D.C. federal appeals court indeed vacated the commission’s anti-blocking and anti-discrimination prohibitions.
This means, technically speaking, that there is nothing at the moment to prevent Internet service providers—cable operators being the dominant specie—from running roughshod, discriminating among edge providers for financial gain or from blocking certain services while allowing others.
However, cable operators have said all along they have no interest in blocking or playing favorites. They were, in fact, at the table when the FCC hammered out the compromise order. And no cable operator challenged the order in court—the only challenger was wireless company Verizon.
The largest cable operator, Comcast, couldn’t block or discriminate if it wanted to because it had to promise to abide by the order, whether or not it was overturned by the court, as one of the prices of securing its deal to buy NBCUniversal.
There have not been any formal network neutrality complaints in the three-plus years since the FCC order was adopted in late 2010. Cable operators should work to ensure it stays that way.
The court has made it clear that the FCC has the authority to reclassify Internet access, either using its power to promote broadband deployment or the “nuclear option” of classifying it as a Title II common carrier service. Cable operators went to great lengths to avoid the Title II nomenclature last time around. You can expect the industry to work with the FCC to recraft similar rules with more solid legal footing to, again, avoid the nuclear option the court has now essentially sanctioned.
Broadband is the currency not only of entertainment, but commerce and social interaction and, with apologies to the “touch and feel of cotton,” is now the true fabric of our lives. That is both an incredible opportunity for cable operator ISPs and an incredible responsibility to the public whose interest is best served by the open Internet.
So in the interim, here are some of the pledges made by interested parties last week to keep the Internet open, which we make part of the official B&C editorial page record:
National Cable & Telecommunications Association: “The cable industry has always made it clear that it does not—and will not—block our customers’ ability to access lawful Internet content, applications or services. We look forward to working with [FCC] chairman [Tom] Wheeler and the FCC on ensuring that American consumers will continue to enjoy a fast, robust and open Internet experience.”
Comcast: “Comcast has consistently supported the commission’s Open Internet Order as an appropriate balance of protection of consumer interests while not interfering with companies’ network management and engineering decisions,” the company said Jan. 14. “As a result, we agreed in the NBCUniversal transaction order to abide by the Open Internet rules for seven years even if the rules were modified by the courts. We remain comfortable with that commitment because we have not—and will not—block our customers’ ability to access lawful Internet content, applications or services. Comcast’s customers want an open and vibrant Internet and we are absolutely committed to deliver that experience.”
Time Warner Cable: “Since pioneering the development of high-speed broadband service in the late 1990s, Time Warner Cable has been committed to providing its customers the best service possible, including unfettered access to the Web content and services of their choice,” Time Warner Cable said in a statement. “This commitment, which long precedes the FCC rules, will not be affected by today’s court decision.”
Verizon (which challenged the law in court): “One thing is for sure: Today’s decision will not change consumers’ ability to access and use the Internet as they do now. The court’s decision will allow more room for innovation, and consumers will have more choices to determine for themselves how they access and experience the Internet. 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.”
The FCC still has the Big Stick of Title II classification in its pocket, but it should not need to use that to keep the Internet open and accessible.
Cable operators and other ISPs have pledged on the record to work with the FCC to insure openness. It is in everyone’s interest that they succeed.