Net neutrality decision weighs heavy over Internet freedom war, leaves room for FCC power grab

By Josh Peterson | Watchdog.org

WASHINGTON — Both sides of the Internet freedom war are reeling after a federal court on Tuesday overturned a contentious Federal Communications Commission regulation that expanded the agency’s authority over the Internet.

The U.S. Court of Appeals for the District of Columbia partially struck down the FCC’s so-called “net neutrality” rules in response to a lawsuit filed by Verizon against the commission’s Open Internet Order.

The Open Internet Order, which enshrined the FCC’s “net neutrality” rules, held that broadband Internet service providers must disclose how they manage network traffic.

The FCC regulation also prohibited ISPs from blocking lawful content, applications, services or devices that compete with their own products and services. Slowing down lawful Internet traffic transmitted over their networks also was prohibited.

The court’s highly anticipated decision overturned the latter two of the three rules — the latest in a years-long war between progressive advocacy groups determined to turn the Internet into a public utility regulated by the FCC and ISPs and free-market advocates fighting against an FCC power grab over the Internet.

FCC Chairman Tom Wheeler said in a statement that the commission may consider appealing the court’s decision.

“We will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans,” Wheeler said.

Both sides of the debate took to the blogosphere and Twitter following the decision to paint it as a loss for their respective causes.

Advocacy groups historically financed in part by billionaire progressive philanthropist George Soros, such as progressive tech-policy advocacy group Free Press, lamented the decision as the “death” of net neutrality.

Prominent progressive technology lawyers Marvin Ammori, Susan Crawford and Tim Wu held court with Reddit users, answering questions about why they viewed the ruling as a defeat.

Ammori also published on Slate a scathing rebuke of the FCC’s former chairman, Julius Genachowski, accusing him of caving to pressures from cable and telephone companies by creating a regulation seemingly designed to fail in court.

Ammori even went so far as to compare Genachowski to a traitor in the popular children’s saga “Harry Potter.”

“If this reminds you of the scene in the Harry Potter books when the coward Peter Pettigrew, who had immense power as James Potter‘s secret-keeper, makes a deal with Voldemort and betrays the wizarding world, it should,” wrote Ammori.

Verizon, on its public policy blog, appeared to support the decision.

“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,” said Randall Milch, Verizon’s general counsel and executive vice president for public policy, law and security.

But even advocates who opposed the order were not thrilled about the lawsuit’s outcome.

Will Rinehart, director of technology and innovation policy at American Action Forum, a center-right Washington, D.C.-based policy institute, wrote in a blog post Tuesday that the decision was a “mixed bag” and a “temporary win for consumers.”

“The ruling is a temporary win for consumers, but could easily be undone by the FCC’s reaffirmed power over the Internet,” Rinehart said, referring to the court’s decision to uphold the commission’s rule that broadband providers must disclose their network management practices.

He also exhorted the FCC to move on and focus on other pressing policy issues, stating, “Far too much political capital has been expended already on the issue.”

TechFreedom, a free-market tech policy think tank, was more aggressive in its condemnation of the court’s decision, warning that the court had essentially granted the FCC “sweeping new power over the Internet.”

Siding with the dissenting opinion, TechFreedom senior fellows Geoffrey Manne and Berin Szoka said in a statement, “The FCC may have lost today’s battle, but it just won the war over regulating the Internet.”

Contact Josh Peterson at jpeterson@watchdog.org

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