The Feds Lost Net Neutrality, But Won Control of the Internet

No matter what you think of network neutrality for it, against it, its complicated, who cares the fact that a federal court just struck down most of the FCCs net neutrality rules is clearly cause for concern.

But not for the reasons you think. Others are saying that the FCC just lost the battle but can finally win the war if the agency formally reclassifies broadband as a heavily regulated common carrier (like traditional telephone services). Actually, the FCC lost the battle, but it just won the war over regulating the internet. It no longer needs to bother with reclassification, aprocess so difficult and drawn-out it was always a political fantasy anyway.

The FCCs broad new powers should worry everyone, whatever they think of net neutrality. Because beneath the clever rallying cries of net neutrality! lurks a wide range of potential issues. Most concerns are imaginary or simply misplaced. The real concerns would be better addressed through other approaches like focusing on abuses of market power that harm competition.

But first, we need to look at the ruling in a more nuanced way.

Berin Szoka & Geoffrey Manne

Berin Szoka is President ofTechFreedom. Geoffrey Manne is Executive Director of theInternational Center for Law & Economicsand a TechFreedom Senior Fellow. Disclosures: Their work is supported by both broadband and edge providers.

What just happened? Well, the Federal Communications Commission (FCC) found in 2008 that Comcast had violated the agencys net neutrality policy statement by allegedly slowing BitTorrent traffic. The D.C. Circuit then found the FCC lacked statutory authority. The FCC responded with the 2010 Open Internet Order, which re-interpreted Section 706 of the Communications Act as a broad grant of authority. So Verizon sued. Two days ago, the court accepted that re-interpretation, which means the FCC can regulate net neutrality even though the court struck down the two key provisions of the Open Internet Order.

Indeed, the court has very nearly given the FCC and state utility commissions, to boot carte blanche to regulate the entire internet. And thats the real story here.

The only real limit is that the FCC cant overtly treat internet services like common carriers. But this limit may mean little. Indeed, the courts ruling even lets regulators assert new powers to regulate internet services well beyond broadband Still, putting that kind of broad power in the hands of government should trouble anyone worried about the abuses of the NSA or the prospect of the International Telecommunications Union taking overinternet governance.

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The Feds Lost Net Neutrality, But Won Control of the Internet