01/14/2014 02:46 pm ET Updated Mar 16, 2014

Net Neutrality Is Dead

The idea that those companies that run big telecommunications networks shouldn't be able to play favorites is dead, at age 80. First enacted in the 1934 Communications Act, the principle was very simple. Telephone companies shouldn't be able to discriminate among the traffic they carry. The U.S. Appeals Court for the D.C. Circuit ruling killed it.

That was one of the guiding forces when there was a telephone monopoly with the old Bell System and AT&T. It is no less necessary now. In fact, some might say it's more necessary because the big telephone, cable and wireless networks have so many more ways to play games than they did before.

There's no shortage of suspects in causing the death of Net Neutrality. In fact, the scenario is close to Agatha Christie's Murder On The Orient Express, (Murder On The Calais Coach, to the purists) in which (80-year-old spoiler alert) several people were guilty of killing the same victim. For that reason alone, Net Neutrality isn't coming back any time soon.

Among the guilty parties here, start with The Federal Communications Commission (FCC) under Chairman Julius Genachowski. After he gave a rousing pro-Internet speech after taking office, Genachowski was beaten into submission by AT&T's aggressive lobbying. He could have reversed the unfortunate decision of his predecessor, Michael Powell, and allowed broadband Internet access service to be considered under general regulation, but chose not to. He tried to get too cute by slicing and dicing the telecommunications law in ways not meant to be. And lost.

It would be unfair to place all of the blame on Genachowski. Google, once a champion of a neutral Internet, cut a deal with Verizon to have some rules on the wired side of the network, but none on wireless -- the side with all of the growth. There were those in Capitol Hill who blessed that arrangement and didn't press the FCC to do the right thing. And there were some public interest organizations which also agreed with the deal and defended it as better than nothing.

It's for those reasons that Net Neutrality isn't coming back. No one to whom Congress listens will defend it. Congress most listens to big companies, and there haven't been any big opposing AT&T and Verizon (with sidekick Comcast and the rest of cable) since AT&T and Verizon bought up the "old" AT&T and MCI.

Unfortunately, you can't count on the online industry. Consider the Internet Association, whose members have the most at stake here. The trade group represents Airbnb,, AOL, eBay, Expedia, Facebook, Gilt, Google, IAC, LinkedIn, Lyft, Monster Worldwide, Netflix, Path, Practice Fusion, Rackspace, reddit,, SurveyMonkey, TripAdvisor, Uber Technologies, Inc., Yahoo!, and Zynga.

Admittedly, it can be difficult to get consensus among a lot of members, but on this issue, some sort of strong statement would certainly be in order. Instead, we got this:

"The Internet creates new jobs, new technologies, and new ways of communicating around the globe. Its 'innovation without permission' ecosystem flows from a decentralized, open architecture that has few barriers to entry. Yet, the continued success of this amazing platform should not be taken for granted. The Internet Association supports enforceable rules that ensure an open Internet, free from government control or discriminatory, anticompetitive actions by gatekeepers. We look forward to studying the D.C. Circuit's opinion and working with the FCC and policymakers on the Hill to protect Internet freedom, foster innovation and economic growth, and empower users."

I'm sorry if there appear to be some unicorns in that statement. How can there be "enforceable rules" that are "free from government control?" Who on earth is supposed to enforce said rules? AT&T jumped the gun a little bit when it announced a couple of days ago that companies wishing to buy a "fast lane" on the Internet to reach customers will be free to do so.

So independent film distributors, alarm companies, startups, or just about anybody else other than similarly situated giants, as some net-based companies have become, are basically at the mercy of the telephone, cable and wireless (which in most cases is the telephone company) companies.

Will the Net giants stand up to defend principle and their brethren in online commerce? History suggests not, although it would be nice to be wrong.

What about the FCC? Without consulting a Magic 8 Ball, the Commission's role would probably come up "don't count on it." Why? Because House Republicans were quick off the mark to praise the court ruling as a "victory for jobs and innovation" that will allow Americans to have access to the content of their choice. Of course, that assumes the providers of said content pay up.

FCC Chairman Tom Wheeler has said all of the right things about wanting competition, and at this point it's not certain he would do the things necessary to get it. Little by little over the years, the pro-competitive rules, the pro-consumer rules were whittled away by the power of the telecom lobby which controls a sizable amount of votes, Democratic and Republican in the Senate and House.

That leaves the rest of us, Web users, developers, small sites, whoever. It might be said that "the people" killed some bad intellectual property legislation in 2012 (the SOPA/PIPA wars), but that isn't really the case. Momentum didn't really swing the right way until Google put up a petition that got millions of signatures within hours and someone on reddit led the way for a blackout.

Are the big players necessary even to make this a fight, much less a winning effort, willing to step up again? Is anyone? Don't count on it.