There should not be fast lanes and slow lanes on the Internet. But that could be the result of a federal appellate court ruling this week that invalidated a Net neutrality order issued by the Federal Communications Commission. The ruling means the FCC will have to find a new source of authority to regulate the Internet, or Congress will have to grant the agency that authority. Otherwise, users could soon find themselves frustrated by speed bumps hidden in their broadband service, and deep-pocket interests will dominate the Web.
Net neutrality is the way Internet service currently operates. It means that network providers treat all Web traffic equally, allowing consumers to access material at the same rate of speed. Without Net neutrality rules, the big telecommunications and cable providers could decide to start charging Web sites for faster delivery or prefer content providers associated with their own conglomerates. This would crush innovation and competition by giving the biggest companies the ability to nudge smaller start-ups out of view.
The case that put Net neutrality into doubt involves a decision by Comcast, the largest cable provider in the United States, to limit user access to BitTorrent, a peer-to-peer exchange that allows users to swap movies and other large files that eat up significant bandwidth. After consumer groups complained, the FCC issued an order telling Comcast to stop discriminating against peer-to-peer communications in its network management.
Comcast challenged the order, and a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit set it aside and ruled that the FCC reached beyond its delegated authority.
Right now the big network providers are saying they will voluntarily comply with Net neutrality, despite the ruling. But they can't be trusted to regulate their own industry. The incentives for broadband companies to turn the Web into a pay-to-play system are just too great.
For example, Comcast is trying to acquire NBC Universal, the parent of the broadcast station and a number of cable channels. Without a Net neutrality rule in place, Comcast could prefer NBC programs over a competitor's.
Options going forward include pushing Congress to give the FCC explicit authority to regulate Internet service, although there is Republican opposition to this that would be difficult to overcome. Or the FCC could find new regulatory authority under a long-standing statute that broadly grants the agency the power to regulate common carrier services, such as phone and cable companies. The problem is the FCC previously cut itself out of a regulatory role in high-speed Internet service. But that can be revisited in light of the advance of technology, and there seem to be the votes on the commission to move this way.
Without FCC regulatory power, the new national plan to expand broadband access to poor and rural areas by shifting billions of dollars from a telephone program may not be viable. That alone is reason enough to find a way out of this pickle and protect Net neutrality.