Court strikes down net neutrality in the US

Michelle Clancy | 15-01-2014

In a major blow to advocates of net neutrality, a US appeals court on Tuesday (14 January) defanged the FCC's ability to enforce federal rules adopted in 2010 that require broadband providers to treat all Internet traffic equally.

In the wake of a lawsuit brought by Verizon, a three-judge panel of the US Court of Appeals decided that broadband, because it isn't classified as a traditional "common carrier" telecommunications service, does not fall within the FCC's ability to regulate how service is delivered in the same way that it can, say, voice service.

"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," Judge David Tatel wrote for the court.

The FCC and consumer advocates have long sought to prevent ISPs like Verizon, Comcast and AT&T from throttling traffic they don't like, be it streamed Netflix or YouTube video, emailed video clips, app-related traffic, music services, videoconferencing or what have you.

This has become a piquant crusade considering that streaming video makes up the lion's share of the exponentially growing glut of Internet traffic. To keep up with that growth in services like Netflix, ISPs have had to invest millions in increased capacity — all to deliver traffic that they can't directly monetise. Also, ISPs that have TV operations, such as every cable company and most telcos, have a competitive interest in reducing the user experience for over-the-top (OTT) video that could cannibalise their own viewership.

Now, consumer advocates fear that ISPs have been cleared to throttle at will, or implement tiered, pay-to-play classes of service where only content owners that pay them will have their wares delivered to consumers at full speed.

Of course, offering open access to OTT content could ironically become a competitive differentiator on the broadband front. A statement from Time Warner Cable reflects this: "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. This commitment, which long precedes the FCC (FCIC) rules, will not be affected by today's court decision."

The fight isn't entirely over: the FCC could appeal, or it could reclassify broadband as a common carrier service.