Net neutrality is an essential feature of the Internet that Americans take for granted. Under those rules, Internet service providers cannot limit what people do online or give some content providers a fast lane to consumers while consigning others to a slow lane. But this government-enforced freedom is in jeopardy. A case argued Monday before a federal appeals court asks whether the Federal Communications Commission has any role to play in ensuring equal access to all traffic on the Internet. If federal rules are loosened, the Web will surely become more limited, less innovative and more expensive for consumers.
The case brought by Verizon, one of the country's largest Internet service providers, could upend some of the most successful government open-marketplace rules. The FCC's 2010 Open Internet order says service providers cannot block Internet traffic or unreasonably discriminate against content. They cannot give preference to their own websites over a competitor's or require content providers to pay more for better access to consumers. If that were the case, the Internet could essentially freeze up with big names like Google and Facebook holding the power and resources to block startups and smaller rivals.
The question before the U.S. Court of Appeals for the District of Columbia Circuit boils down to whether the FCC has the authority to regulate the Internet at all. Verizon claims that it has a First Amendment right to control the expressive content that flows over its broadband systems. It argues that Congress has not given the FCC the discretion to impose rules on the way the Internet operates. During oral arguments that lasted two hours — triple the amount of time formally scheduled — two of the three judges seemed to sympathize with Verizon's claims that the federal agency illegally stretched rules meant for telephones to fit the Web. One reason the FCC is in a legal box is that 10 years ago, the agency said the Internet is not like a telecommunications service, an area where it has broad regulatory authority.
But the FCC can reasonably claim ancillary authority under other federal statutes, such as one that encourages the agency to expand broadband access. And as to Verizon wrapping itself in the First Amendment, Internet service providers made the opposite argument when the issue was liability for Web content that infringes copyrights. In that case, they claimed they were passive conduits with no editorial control and should not be responsible for what moved across their pipes.
The Web is a vibrant, open marketplace of creativity, information and inventive commerce because net neutrality rules have built a superstructure that keeps access free. It should remain that way.