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Court ruling overturns Net Neutrality, threatens online access, experts warn

  • Wheeler FCC Net Neutrality.jpg

    Jan. 9, 2014: Federal Communications Commission (FCC) Chairman Thomas Wheeler speaks during a Town Hall meeting in Oakland, California.Reuters / Stephen Lam

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    AP GraphicsBank

Thanks for watching that YouTube video! That will be 50 cents, please.

Sound unrealistic? It's actually a distinct possibility, after a Federal appeals court on Tuesday struck down an FCC ruling meant to prevent an Internet service provider -- the company you pay for online access -- from prioritizing some website traffic over others.

And because that rule was wiped off the books, those ISPs are suddenly able to do just that. With service providers suddenly able to charge based on the type of content you watch or the sites you visit, it's easy to imagine a system like that of today's cable television market. Want HBO? It's an extra $5. Want our streaming video package, with YouTube, Hulu, TV.com, and more? That's $5 too.

Don't pay and you can't watch. Period.

The so called “net neutrality” rule, put in place by the FCC in 2010, was intended to ensure equal access to all types of content. Regulators and politicians feared a tiered access to premium content or that ISPs might unfairly fast-track access to their own content over competitors.

'Without these rules, consumers are at the mercy of their providers ... and business arrangements that could severely limit access to certain content.'

- Sarah Morris, senior policy counsel for the Open Technology Institute

“A broadband provider like Comcast might limit its end-user subscribers’ ability to access The New York Times website if it wanted to spike traffic to its own news website,” the ruling notes.

But because of a quirk in how the government regulates Internet service providers -- almost a technicality in how the FCC ruling was written -- the court said that the regulatory agency didn't have the legal basis for its own policy.

“Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order,” it noted.

The ruling was the conclusion to a long-running challenge to the law by Verizon Communications. In a statement Tuesday on its public policy blog, the company stressed that it had no plans to institute any form of tiered access program.

“One thing is for sure: Today’s decision will not change consumers’ ability to access and use the Internet as they do now,” wrote Randall Milch, Verizon's general counsel and executive vice president. “Verizon has been and remains committed to the open Internet that provides consumers with competitive choices and unblocked access to lawful websites and content when, where, and how they want.”

But public policy experts and consumer advocates were hesitant to accept the ruling as a win for consumers. Sarah Morris, senior policy counsel for the think tank Open Technology Institute, said she worried it could lead to the worst-case scenario: exactly what Verizon says won’t happen.

“The FCC’s Open Internet Rules represented an important -- if imperfect -- regulatory intervention to preserve the ability of broadband consumers to access the content of their choosing," Morris said in a statement. "Without these rules, consumers are at the mercy of their providers and the business arrangements those providers have already said they would implement absent the rules – business arrangements that could severely limit access to certain content online.”


Rashad Robinson, Executive Director of ColorOfChange.org, went a step further, saying the ruling could even be a blow to civil rights.

“Black folks' ability to be heard is now in real danger,” he said in a statement. “Today's ruling … is a serious blow to the millions of Americans who count on the free and open Internet to go about the essentials of our daily lives.”

The FCC said it was weighing all of its options, including potentially appealing the ruling.

"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,” said FCC Chairman Thomas Wheeler in a statement.

The ruling is the latest in a years-long battle by politicians and Internet watchdogs seeking to ensure equal access to content. Politicians have been fretting about it for years -- never mind that there has yet to be a single instance of an ISP doing what they fear.

"Internet service giants like Comcast and Verizon want to offer premium and privileged access to the Internet for corporations who can afford to pay for it," worried Minnesota senator back in 2010, in yet another spin on how the rulings may play out.

“We must ensure that consumers do not become casualties in our efforts to balance competing interests,” warned FCC commissioner Mignon L. Clyburn.