Net Neutrality - The New York Times

Net Neutrality, Back in Court

It was predictable that a telephone or cable company would challenge the rules proposed last December by the Federal Communications Commission to guarantee that the Internet remains an open network.

Still, the lawsuits filed by Verizon and MetroPCS earlier this year against the F.C.C.’s net neutrality rules are disappointing. The suits fall into a swirl of antiregulatory fervor among Republicans on Capitol Hill. The continuing resolution passed by the House last week forbids the F.C.C. from using any money to put the new rules into effect.

That bill, and the lawsuits, risk stripping away the F.C.C.’s light-touch attempt to ensure that the Internet remains open — an approach carefully crafted in months of negotiations with Verizon and other companies.

The suits could potentially free Internet service providers from regulation — allowing them to treat their own content better than that of rivals, and block content that they didn’t like or competed with. Verizon and AT&T have about 60 percent of wireless subscribers. And 80 percent of Americans live in areas with only two wireline broadband providers. In a market with such slender competition, consumers are likely to lose out.

Verizon’s argument is simple: it doesn’t want the F.C.C. to write rules for the Internet. This is especially true when it comes to wireless, which it views as virgin territory. The question is, should Verizon be allowed to, say, block Web sites that compete with its own services and discriminate at will to pursue its business interests? To us, that should be an area of federal intervention.

Both lawsuits take advantage of a weakness in the F.C.C.’s approach: in proposing new rules for the Internet, it decided to stick to the Bush administration’s definition of the Internet as an “information service” rather than reclassify it as a telecom service. The F.C.C. has limited regulatory power over information services, and much more over telecommunications.

In April 2010, the United States Court of Appeals for the District of Columbia Circuit ruled that the F.C.C.’s authority over information services was so limited that past efforts to ensure network neutrality exceeded its authority. While the commission believes its new rules will survive the court challenge, we fear that its strategy is legally vulnerable. Verizon and MetroPCS are bringing their cases in the D.C. Circuit.

The choice for American consumers is between the open broadband they have come to expect — in which they can view any content from sources big and small — and a walled garden somewhat like cable TV, where providers can decide what we can see, and at what price.