Battle Over 'Future of Open Internet' Hits Court

DC Circuit Court of Appeals hears Verizon's challenge to FCC's net neutrality rules

A landmark case affecting the future of the internet headed to court on Monday.

The D.C. Circuit Court of Appeals will hear Verizon's challenge to the net neutrality protections--protections advocates say are vital to an open internet--passed by the Federal Communications Commission (FCC) in 2010.

Josh Levy of internet freedom group Free Press writes that "If Verizon gets its way, the FCC's rules protecting Internet users from corporate abuse will disappear."

What is net neutrality? Free Press explains that it "means that Internet service providers [ISPs] may not discriminate between different kinds of online content and apps. It guarantees a level playing field for all websites and Internet technologies."

"The 2011 rules," Reuters reports, "required internet providers to treat all traffic equally and to give consumers equal access to all lawful content, even where that content might compete with aspects of the Internet provider's business."

But what does that mean to you as an Internet user? Simon Maloy of the watchdog group Media Matters for America breaks the issue down further:

Let's take as a hypothetical example two popular streaming video services: Netflix and Hulu. Right now, you can access both competing services at the same speed. But let's say you get your internet through Comcast, which owns 32 percent of Hulu and provides 20-plus percent of residential broadband subscriptions nationwide. Comcast wants to boost Hulu's competitiveness, so it starts offering you "preferred access" to Hulu over other streaming video services (faster downloads, not counting Hulu's data against your monthly data allowance, etc). Netflix would flip its lid, and rightly so. Comcast would have leveraged its role as internet gatekeeper to tilt the competitive balance in favor of its own interests. You, as a Comcast subscriber, would be incentivized to patronize Hulu over Netflix not because Hulu offered better service, but because Comcast was rigging the market.

In other words, as Levy writes, the goal for ISPs is "to turn the Internet into their own private profit engine."

The Hillsummarizes both sides' arguments:

Verizon will tell the three-judge panel of the D.C. Circuit Court of Appeals that the agency overstepped its legal authority and that the rules violate the company's constitutional rights.

The FCC's case will hinge on whether the judges accept its argument that the rules promote investment in broadband service, an area where the agency has explicit authority. A lawyer for a coalition of outside groups, including Web companies and public interest advocates, will also defend the FCC.

David Sohn of the open internet advocates Center for Democracy & Technology (CDT) writes that "the truly radical issue raised in this case is Verizon's claim that it has a First Amendment right to 'edit' its users' communications." He continues:

CDT rebutted this audacious argument in our amicus brief in the case, and the L.A. Times just published an excellent editorial denouncing it as well. Commandeering the First Amendment in support of the widespread blocking and tampering with users' speech and access to information would turn the right of free expression on its head, relegating the speech interests of Internet users to second class legal status. "Editing" Internet access would turn it into something a lot more like cable TV - a centrally controlled medium where the service provider decides what options users will get.

Levy echoes the cable analogy, and says the stakes in the outcome of the case "couldn't be higher":

Verizon vs. FCC is much larger than the claims of a single company. At stake is whether the Internet will remain an open medium for creativity, free expression and innovation, or a cable-like closed system that just a few ISPs control.

The stakes couldn't be higher: The FCC's ability to safeguard Net Neutrality is crucial to the future of the open Internet.

Tech news site Gigaom reports that a decision in the case is expected late fall or winter.


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