Think The Net Neutrality Fight Is Over? Think Again.

06/05/2015 01:10 pm ET | Updated Jun 05, 2015
MANJUNATH KIRAN via Getty Images

WASHINGTON -- When the Obama administration approved strong new net neutrality rules earlier this year, advocates rejoiced. "We have won on net neutrality,” Apple co-founder Steve Wozniak told The Guardian. President Barack Obama declared victory and thanked Reddit, the self-proclaimed "Front Page of the Internet" for its community's activism on the issue.

But these celebrations may have been premature. Telecom and cable companies, which provide broadband access to the vast majority of Americans, are challenging the Obama administration's actions in court. If they get their way, a federal appeals court will soon delay some rules that aim to protect net neutrality, the principle that all internet traffic should be treated equally. Open-Internet advocates fear that an unfavorable decision may open the door for harmful business practices while the court battle—which could take years—plays out. A stay on part of the new rules would also likely embolden Republicans on Capitol Hill who seek to pass laws gutting the rules.

In February, the Federal Communications Commission voted along party lines to adopt rules that ban Internet service providers such as Comcast and Verizon from charging content providers such as Netflix for more reliable broadband access. ISPs and many Republican lawmakers despise the new rules, claiming that they will hamper innovation.

In April, a number of industry groups and companies challenged the new regulations in the U.S. Court of Appeals for the D.C. Circuit Court. The groups later asked the court to issue a stay delaying the government from reclassifying broadband as a utility under Title II of the Communications Act, which is the legal basis underlying the new rules that ban Internet blocking, throttling, and paid prioritization. The ISPs argue that the FCC can use a different bit of telecom law to implement net neutrality rules. They also don't want the FCC to have the authority to police certain violations.

Broadband providers argue that without a stay, they will suffer grave financial losses. "This is, in my judgment, government at its worst. An agency seeking vast powers not authorized by Congress," said Theodore Olson, a lawyer representing the National Cable & Telecommunications Association, in a call with reporters this week. The industry groups are asking the appeals court to rule on the stay by June 12, the day the new rules are scheduled to go into effect.

A spokesperson for FCC Chairman Tom Wheeler declined to comment on the impact of a stay.

The telecom companies that oppose the new rules say that they have no intention of doing anything that will harm consumers. But net neutrality advocates warn that an early win may encourage ISPs to experiment with controversial business practices, including charging content providers for more reliable service.

"We saw what happened with Netflix," said Harold Feld, senior vice president of Public Knowledge, referring to an incident in which Comcast customers reportedly experienced glacial movie-streaming speeds before Netflix agreed to pay the cable company for more reliable service. Netflix later reached a similar deal with Verizon. "There are a lot of companies that do a lot of video that are similarly vulnerable to that kind of pressure.... You have to worry that the [ISPs] will try to squeeze these guys while they can."

Video-streaming companies are worried about exactly that. "This behavior threatens the very fabric of the Internet," a coalition of advocacy groups and companies, including Netflix and Vimeo, argued in an opposition brief in May.

Net neutrality backers are vowing to keep an eye on ISPs if the stay is granted. "One of the single dumbest maneuvers in the history of corporate PR and governance was the throttling of Netflix," said David Segal, executive director of Demand Progress, an activist group. "Any such maneuver by the [ISPs] during a stay would just create more esteem for tough rules."

There could also be political ramifications if ISPs win a stay. Republican lawmakers have been pushing legislation to disembowel the agency's net neutrality rules, with little success. If the ISPs succeed in delaying part of the rules, Republicans can "argue to the Democrats, 'Look, this shows you guys are going to lose so you should cut a deal with us,'" Feld said. "If the court denies the stay, it will give the Democrats in Congress ammunition to tell Republicans, 'Look, this is going to happen...just move on already.'"

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