In the words of Howard Beale, the Mad Prophet of the Airwaves in the movie Network, "Woe is us! We're in a lot of trouble!" And, as Beale would shout, we should be mad as hell.
Issuing a decision that triggered dismay and anger among supporters of an Internet open and free to all, a federal appeals court on Tuesday overruled the Federal Communications Commission and set the stage for a near future in which such service providers as Verizon and AT&T could give preferential treatment to websites willing to pay a higher price for access and speed.
The ruling by the United States Court of Appeals for the District of Columbia Circuit is a potentially lethal blow to net neutrality -- the principle that the Internet should be available equally to anyone who wishes to use it as a medium for creativity and information, regardless of who they are and no matter the size of their checkbooks.
The court ruled in a lawsuit filed by Verizon that "the FCC cannot subject companies that provide Internet service to the same type of regulation that the agency imposes on phone companies," The New York Times reported. "It cited the FCC's own decision in 2002 that Internet service was not a telecommunications service - like telephone or telegraph - but an information service, a classification that limits the FCC's authority."
The entertainment industry news site Variety noted:
"The decision has broad implications for Internet businesses of all kinds, including Google, Yahoo, Netflix, Amazon.com, Apple and Facebook -- as well as traditional media companies that rely on broadband networks for content distribution. The ruling for now establishes that government regulators can't dictate how Internet service providers manage their networks and how they choose to prioritize data."
In an Ask Me Anything discussion on the Reddit website Tuesday afternoon, telecommunications policy expert Susan Crawford further described the implications of the court decision:
"It means that the major providers of high-speed Internet access in the US, who have systematically divided markets and tacitly agreed mostly not to compete with one another, can treat high-speed Internet access like a cable TV service. They can be gatekeepers, charge content providers (any business) for the privilege of reaching us, the subscribers; and, of course, charge us. A lot. For lousy service compared to, say, Stockholm or Seoul."
In an official statement, Craig Aaron, president and CEO of the media reform group Free Press added:
"[The court's] ruling means that Internet users will be pitted against the biggest phone and cable companies -- and in the absence of any oversight, these companies can now block and discriminate against their customers' communications at will... They'll establish fast lanes for the few giant companies that can afford to pay exorbitant tolls and reserve the slow lanes for everyone else."
Nonetheless, the court's decision could be reversed, either on appeal to the Supreme Court or by the FCC backing away from decisions it made during the George W. Bush and Obama administrations and taking a stronger stand on behalf of the American people instead of the Verizon's and AT&T's. In an article for The Huffington Post, Craig Aaron notes:
"New FCC Chairman Tom Wheeler recently stated that the FCC must be able to protect broadband users and preserve the Internet's fundamental open architecture. Now he has no other choice but to restore and reassert the FCC's clear authority over our nation's communications infrastructure.
... Now the free and open Internet is flat-lining. But Wheeler has the paddles in his hands and the power to resuscitate Net Neutrality. We'll know soon if he has the political guts to use them."
Wheeler, after the court's decision was announced, said, "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."
But there will be congressional opposition. And the FCC has a long, sad track record of spinning pro-industry positions to make them sound good and good for you. It's too soon to tell on which side Wheeler, a former lobbyist for the mobile phone and cable TV industries, ultimately will come down. Which means that once again, as has been the case so many times since this fight began, people have to stand up and be heard.
You can start by contacting the FCC chairman's office and demanding that he and his colleagues stand resolute and forthright in favor of net neutrality, an Internet open to all.
Send an e-mail at http://www.fcc.gov/leadership/tom-wheeler-mail. Or tweet @TomWheelerFCC.
Follow Michael Winship on Twitter: www.twitter.com/MichaelWinship