Why US ruling could be a 'conversation starter' in global net neutrality debate

A federal appeals court upheld FCC rules prohibiting internet providers from blocking or slowing down online traffic. The ruling comes in the wake of Europe and India taking strong stances in favor of net neutrality. 

A federal appeals court has affirmed rules that prohibit internet providers from blocking or slowing down traffic online. The ruling hands a strong victory to advocates of net neutrality, a principle that’s increasingly growing dominant around the world.

The 2-1 decision Tuesday by the US Court of Appeals for the District of Columbia Circuit ensures that sweeping rules passed last year by the Federal Communications Commission that give the regulator more oversight over internet providers will likely stay on the books.

“We’d like this to be very much the final word on net neutrality. This is an issue that we’ve been working on for over ten years and this is a very important victory,” says Timothy Karr, senior director of strategy at Free Press, an open internet advocacy group.

The court’s decision comes as a disappointment for industry groups, who had argued that the FCC’s decision to reclassify internet providers as “telecommunications services” went too far.

But for advocates, the court’s affirmation of the FCC’s rules marks a key milestone, coming as Europe is finalizing net neutrality regulations of its own. In March, India’s telecom regulator also invoked net neutrality in barring a Facebook-created affordable internet service over concerns that it granted users access to a select group of websites while excluding access to others.

“I think it’s a significant victory for net neutrality. I don’t know that other countries have been waiting for the US, in some respects the issue has been pushed much further in other countries,” says James Grimmelmann, a law professor at the University of Maryland who studies the internet and legal issues.

“What this does is it clear the way for the FCC to deal with the actual hard questions, the hard things that they would like to do in terms of innovative services,” he adds, mentioning changes in smart-home technology and Internet of Things devices.

In the ruling, Judges David Tatel and Sri Srinivasan strongly affirmed advocates’ contention that the Internet deserved the stronger oversight given to networks of the past, such as telephones. That’s especially true given that consumers use the Internet to access a variety of third-party services not created by Internet providers, whether to connect with friends via Facebook, request a ride via Uber or watch TV through Netflix, the court said.

“Indeed, given the tremendous impact third-party internet content has had on our society, it would be hard to deny its dominance in the broadband experience. Over the past two decades, this content has transformed nearly every aspect of our lives, from profound actions like choosing a leader, building a career, and falling in love to more quotidian ones like hailing a cab and watching a movie,” the judges wrote.

The decision frees up the FCC, which approved the rules last year in a partisan 3-2 vote, to tackle a variety of related issues. One is concerns about zero rating, a practice where companies exempt data from counting against a users’ cap on data use, such as T-Mobile’s BingeOn, which offers unlimited video streaming.

While services that promise unlimited video might seem to be a win for users, critics say that such services favor content providers who can afford to get their content in front of users, while shutting out those that can’t, such as non-profits or startups.

“Zero-rating is definitely an issue that is not going away,” writes Gabe Rottman, Deputy Director of the Freedom, Security and Technology Project at the Center for Democracy and Technology, a Washington-based think tank, in an email to the Christian Science Monitor.

The FCC has so far delivered mixed messages on the issue, with Chairman Tom Wheeler at one point praising the services as spurring competition, while he also requested more information from mobile providers such as T-Mobile and AT&T last fall. In a letter to the FCC last month, a group of tech companies and civil liberties groups argued the regulator should consider zero-rating in a more public setting.

When it banned Facebook’s Free Basics service, India’s telecom regulator explicitly pointed to net neutrality concerns.

But, in the US, says Professor Grimmelmann, “I think it’s tricky, it’s very easy to build the coalition and the case for anti-blocking rules and it’s very easy to take the general ‘treat-all traffic-alike’ as a rule and a slogan. But when you get in the weeds of [questions] about T-Mobile and BingeOn, it’s harder to say if that’s a violation of network neutrality.”

A second concern is online privacy. In March, the FCC introduced a set of opt-in and opt-out rules aimed at helping users gain more control over how internet companies use and share their personal information.

But some argued that the FCC’s internet rules took the wrong approach in the first place.

In a dissent, Judge Stephen Williams said that while the FCC had successfully demonstrated that it had the authority to legally reclassify broadband providers and telecommunications carriers, the agency wasn’t able to prove that the internet had changed significantly to justify the effort.

The National Cable and Telecommunications Association, the industry’s biggest trade group, said they were still reviewing the decision before considering a next step, which could include an appeal to the Supreme Court.

For Professor Grimmelmann, the court’s ruling could be a “conversation starter” between regulators and internet providers.

But Mr. Rottman, of the Center for Democracy and Technology, says the FCC’s approach “shouldn’t be controversial.”

“Basically, the FCC finally said this thing that walks and talks like a duck -- broadband service -- is actually a duck, and therefore we can treat it legally as a duck,” he writes.