A couple of weeks ago, a federal appeals court invalidated the Federal Communications Commission network neutrality or open internet rules. The rules prevented internet service providers from prioritizing certain applications or content, or blocking access to others.
Though the court affirmed the FCC's ability to regulate internet service providers and its option to redo the rules, the decision currently leaves both consumers and creators with no real regulatory protections. As the Writers Guild of America West noted in a statement on the decision, "The [ruling] is a blow to competition, consumers and content creators. An open Internet has already begun to offer myriad new sources for news, information and entertainment. To allow the Internet to succumb to corporate forces who seek to control what consumers can access undermines the open, democratic principles on which the Internet was founded."
The Internet has become the critical distribution channel for artists and their work. It has opened new opportunities to reach and engage audiences, reduced the need for gatekeepers and middlemen, and established powerful new fundraising channels. These have blossomed because artists, entrepreneurs, application developers, and web designers have all been allowed to "innovate without permission" and reach the public on a level playing field.
But the loss of network neutrality rules means that cable and telephone companies are now free to pick winners and losers online. They can prioritize traffic from one company over another, limit or prohibit the use of certain applications, or cut exclusive deals with content companies, while potentially blocking access to others. These practices will make it harder and more expensive for artists and creators to reach the public.
To be sure, in the absence of net neutrality or similar protections, large Internet platforms like Facebook or Google may be able to pay for access. In that case, Youtube might load faster or not count against a subscriber's data limit, while Vimeo could be significantly slowed or blocked altogether. The net effect will be to tie creators to a small number of large platforms, reduce the choice and leverage of independent artists relative to corporate media, and make it harder for new or marginalized voices to be heard.
Thus far, many of the largest service providers have said that nothing will change. But with the exception of Comcast, which is bound to network neutrality obligations for another several years as part of receiving approval for the Comcast/NBC merger, we can only take their word for it.
Despite the court's ruling, the FCC does have the ability to redo the rules or create new ones. One option is for it to reclassify internet service providers as "common carriers," just as it does telephone companies. This may be the surest path for the FCC to enforce rules that prohibit "unjust and unreasonable discrimination," a core principle of the nation's telephone network.
As an op-ed from the New York Times editorial board noted, "Ideally, Congress would pass a law prohibiting broadband companies from discriminating or blocking content, but that is unlikely to happen given industry opposition. That's why it's important for the commission to reclassify broadband as a telecommunications service." Congressional action could also be more favorable for the cable and telecom companies who have deep pockets and hundreds of lobbyists to influence the process in their favor.
In the end, the public and artists must pay attention and weigh in. Because whether it's the FCC or Congress that acts, passing real rules to protect the free and open Internet will face considerable political hurdles. Absent those voices, policymakers in Washington will leave it to the largest corporations to decide the future of the Internet, and to select its winners and losers.
This post was co-written by Benjamin Lennett, a senior research fellow for the Open Technology Institute at the New America Foundation.