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How It Came To Be That Horizon And AT&T Can Now Legally Block Any Website

net neutrality dead

**UPDATE:  SIGN THE WHITE HOUSE PETITION DIRECTING THE FCC TO RECLASSIFY INTERNET PROVIDERS AS “COMMON CARRIERS” RESTORING NET NEUTRALITY.  

What does the court ruling this week on net neutrality mean for lovers of the free and open internet?  Most internet wonks that I’ve read feel it is a disaster, a death knell for the internet as we know it. But I did find a few  nuanced positions out there that give a little bit of hope, but not much.  Here are three perspectives, ranging from full-fledged, unadulterated disaster to maybe not a disaster, to disaster but it can possibly be fixed.

First, Marv Ammori writes that it is Julius Genachowski who is to blame for dropping the ball on President Obama’s net neutrality policy priority. If you only read one of these articles, I would suggest this one for its succinct history of the fight, clear explanation of the issue and what is at stake, its informed analysis of what went wrong and why, and what it will take to fix it.  Its tone will leave you appropriately depressed but not quite frantic. The entire article can be found on Slate.com and I urge  you to go read the whole thing but here is an excerpt for the time-crunched.

The Net Neutrality Battle Has Been Lost. But now we can finally win the war.

“It was good news when Genachowski made a YouTube video explaining why he had to reclassify Internet services to ensure an open Internet and asked his general counsel to explain the legalities in a widely shared FCC blog post.

Even though he and his general counsel promised to reclassify Internet service, Genachowski essentially caved as the cable and phone companies unsurprisingly continued to oppose network neutrality. The do-nothing, gridlocked Congress failed to bail him out, so he cut a deal with AT&T a few months after the Comcast order back in 2010. The result of that deal: a network neutrality order issued in December 2010, which was struck down today, that was full of loopholes, including exemptions for the now-dominant way of accessing the Internet (mobile).

Now, every side is settling on its narrative. AT&T, Verizon, and their allies will argue that the decision means network neutrality is illegal, full stop, and the FCC can never adopt an order. They will also argue that the FCC needs to go to Congress to get more authority. Both arguments are wrong, of course. The FCC has all the power it needs to clean up the mess, simply by doing what Genachowski—who, it must be said, is a very nice guy—knew he had to do but lacked the spine for.

The bigger question is what the FCC—and advocates of network neutrality—will do… there are those at the FCC who appear to see network neutrality as a brutal war that they would prefer to avoid if possible. Finally, Google, Netflix, Mozilla, eBay, IAC, and other tech companies that have long supported network neutrality seem to have lost a bit of their appetite for a fight.

The only people who remain completely committed to network neutrality and energized to defend it are consumer groups and average Americans who love the Internet. On Reddit, Facebook, and Twitter, people are asking how to reverse the decision and preserve Internet freedom. In Washington, though, having the American public on your side might not be enough to stare down the hundreds of telecom and cable lobbyists. That’s where the consumer groups come in. For many years, organizations like Free Press, the New America Foundation’s Open Technology Institute, Public Knowledge, and others have been active on this issue. (Disclosure: I’m affiliated with or have donated to all of them.) Now, they need to rebuild the coalition with tech companies serving millions of network neutrality supporters and organize the public for a fight—something that’s possible so long as Verizon and AT&T don’t exercise their newfound right to block any website they choose.  (click here to read the entire article)

Ezra Klein reports that not everyone is freaking out and that reports of the free and open internet’s demise have been greatly exaggerated.  He cites a Loyola law professor, John Blevins, who had submitted a pro bono amicus brief in support of the FCC’s open Internet rules and was disappointed in the ruling, but thinks it is being misinterpreted and could actually help.   I wish I could believe this, but the explanation in the article as to why we should believe it seemed kind of muddy.  Let’s just say when I got to that part my eyes fogged over.  Read Ezra’s entire article on Wonkblog.

Calm down. The courts didn’t just end the open Internet.

“Blevins, a law professor at Loyola University New Orleans College of Law,  submitted a pro bono amicus brief in support of the FCC’s open Internet rules on behalf of various Internet engineers and technologists. So he was disappointed in the ruling. But he also thinks it’s being misinterpreted — and, in the long run, it could actually strengthen the FCC’s authority to protect the internet. He sent along these comments.

The reports of network neutrality’s death have been greatly exaggerated. Yes, the D.C Circuit Court of Appeals vacated the heart of the FCC’s open Internet rules. But it also, more quietly, ruled that the FCC has authority to regulate broadband providers to protect Internet openness.  In doing so, the court may have handed the FCC — and the public — a victory that goes well beyond network neutrality.

The specific legal dispute is arcane, but the stakes are high. In 2010, the FCC adopted rules to protect the open Internet. These protections are essentially nondiscrimination requirements that apply to Internet access providers who physically connect end users to the Internet (i.e., telephone and cable companies).

Nondiscrimination rules are necessary because Internet access providers have a unique type of monopoly — a monopoly over you, the end user.  When you choose to watch Netflix on your computer or smartphone, Netflix’s data can only reach you through your specific access provider. In effect, the access provider owns the only “driveway” to your house and can block content from entering.  Or, it can decide to selectively impose additional tolls on the sites you request, which drives up the costs of those services and stifles new entrants who are less able to pay them.

The FCC’s open Internet rules quite sensibly prevented Internet access providers from engaging in blocking and other unreasonable discrimination. The D.C. Circuit, however, struck down these rules, which has led to criticisms that network neutrality is dead.

Fortunately, it’s not.  The court vacated only these particular rules, not the FCC’s ability to act in the future. Specifically, it concluded that the FCC could regulate Internet providers under a statute known as Section 706, which authorizes the FCC to take various steps to promote broadband deployment. The court correctly recognized that prohibiting blocking and discrimination can lead to greater broadband deployment by increasing consumer demand. For instance, the introduction of the World Wide Web (which required no permission or toll payments) fueled the network investments of the 1990s. The growth of online video is driving modern investment today.

The court objected to FCC’s current versions of the rules because they swept too broadly and indiscriminately. In affirming Section 706 authority, however, the court simultaneously opened the door for the FCC to implement similar versions of these rules on a case-by-case basis against individual access providers who abuse their monopoly. In legal terms, the FCC can now act through adjudications instead of rulemakings. Indeed, one bedrock principle of administrative law is that agencies are generally free to enforce law through either method. (click here to read the entire article)

And this perspective from policymic.com:

A Federal Court Just Killed Net Neutrality. This Is A Really Big Deal

The news: On Tuesday, a federal appeals court handed down an opinion that could end net neutrality as we know it. The ruling, courtesy the D.C. district court, could enable Internet service providers (ISPs) like Verizon to engage in traffic shaping, give preference to specific forms of online content, or offer tiered service that requires additional payment in order to use specific services, view particular websites, or browse the web as a whole.

Net neutrality advocates believe that such a ruling puts undue power in the hands of ISPs, which would be in a position to decide which content makes its way to House Republicans blocked the bill that would have made the classification official, and Verizon’s lawyers sought a rule change almost immediately thereafter. Tuesday’s opinion finds that because Verizon and other broadband ISPs are not defined as common carriers, they cannot be treated as such.

The appeals court’s decision really could lead to a tiered internet wherein VoIP (read: Skype) and streaming video are billed as premium services (that is, in addition to any charges that you already pay for access to Netflix or Hulu Plus), or where ISPs like Verizon and Time Warner Cable shut off access to specific sites as part of contract disputes, much as they do as cable providers today. Just as Time Warner Cable blocked some of its cable subscribers’ access to CBS for a full month last year, the company could simply choose to block access to sites like Facebook or Tumblr, or charge an additional fee for subscription access to them.

Hopefully, one of those options includes renewing the fight to reclassify the ISPs as common carriers to begin with, making the court’s decision genachowskiirrelevant, and enshrining the government’s stated dedication to net neutrality in law.  (click here to read more)

Get out your cell phones. Let’s get to work.

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