If not properly challenged, Tuesday's ruling by a US appellate court allowing the nation's largest telecommunication companies to create elite digital pathways for chosen content will spell the death of the internet as the world has come to know it.
That assessment comes from advocates of the concept known as "net neutrality"—which means equal access and treatment of online content by internet service providers (ie, telecom giants like AT&T, Verizon, and Comcast)—who say that the decision by the three judge panel is either a profound opportunity for a more stable and legally-grounded framework for internet governance or the literal end of an open, equitable, and vibrant internet as it currently exists.
These voices say only decisive action and a groundswell of popular pressure aimed at the FCC, the White House, members of Congress, and the telecommunication giants now hoping to exert total control over the digital platform's information highways can turn the tables on an otherwise terrible development.
As described by Wired editor Ryan Singel, the court's ruling has the following implications for internet users:
If your cable company now wants to slow down Netflix, it can. If it wants to make Skype calls slow, it can. If it wants to make streaming video from its services lightning fast and free from data caps, while slowing down YouTube and counting that data against your monthly allotment, it can do so.
The court's ruling "could signal the end of the Internet as we know it,” said Amalia Deloney, policy director for the Center for Media Justice. “For freedom's sake we can't let this happen."
Promising to fight the impact of the decision, the media advocacy group Free Press has launched an online petition geared at the FCC, calling on the federal agency to "take the necessary steps to make broadband networks open, accessible, reliable and affordable for everyone."
At SaveTheInternet.org, a project of Free Press aimed at protecting the concept of an open internet, the language is sharp:
Bad news: Three judges just dealt a huge blow to the open Internet.
Their ruling means that companies like Verizon can now block or slow down any website, application or service they like. And they’ll be able to create tiered pricing structures with fast lanes for those who can afford the tolls — and slow lanes for everyone else.
Tell the FCC to do everything in its power to fight back.
According John Nichols, a journalist for The Nation magazine and co-founder of Free Press, the FCC could respond "boldly" to the court's decision by moving "to reclassify broadband Internet access as a telecommunications service that can be regulated in the public interest."
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David Sohn, general legal counsel at the Center for Democracy & Technology, said the court’s ruling strikes down "the key provisions that provided reasonable and basic protections for a vibrant, open Internet” but agreed with Nichols and Free Press by saying specific aspects of the ruling provide a chance to turn a possible defeat into a potential victory.
The court opinion, Sohn explains, "lays out exactly how the FCC essentially tied its own hands in the case, and makes it clear that the FCC has the power to fix the problem." And continues:
The Court upheld the FCC’s general authority to issue rules aimed at spurring broadband deployment, and accepted the basic policy rationale for Internet neutrality as articulated by the FCC. The arguments in favor of Internet neutrality are as strong as ever, but prior FCC decisions on how to treat broadband have painted the agency into a corner. Those decisions are not set in stone, however, and the ball is now back in the FCC’s court. The FCC should reconsider its classification of broadband Internet access and reestablish its authority to enact necessary safeguards for Internet openness.
Whether the FCC, lead by Chairman Tom Wheeler, will take up the challenge set by the court head-on remains open to speculation.
On the pessimistic end, people like Art Brodksy, a communications consultant and blogger, see the ruling delivered by the court as the final nail in net neutrality's coffin.
In a piece titled "Net Neutrality is Dead--And It's Not Coming Back," posted on his Continental Divide blog and re-posted elsewhere, Brodsky is not as hopeful as others that the FCC is ready to take a bold position against one of the most powerful lobbying forces in Washington. He writes:
Without consulting a magic 8 ball, [the FCC'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.
Outside of the media/democracy organizations mobilizing online petitions and readying calls to Congress, Brodsky questions whether the "net neutrality" concept is strong enough for allies wielding political influence in Washington.
"No one to whom Congress listens will defend it," he laments. "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," which happened in 2006.
Sadly, Brodsky concludes:
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 they willing to step up again? Don't count on it.