Tuesday's federal appeals court decision stripped the agency f its ability to stop companies like AT&T, Verizon and Time Warner Cable from blocking websites and degrading Internet access.
More and more people are calling for a specific fix: To protect the open Internet, the FCC must reclassify broadband access as a telecommunications service.
The New York Times editorial board wrote on Wednesday that the court decision against the Open Internet Order could turn the Internet into a domain controlled only by powerful corporations:
"If this ruling stands, broadband providers would be free to strike deals with companies like Netflix and Apple to pay to have their movies, software and other data streamed to customers faster than or ahead of other content. Such deals would hurt smaller businesses or start-ups that cannot afford to pay for preferential treatment."During oral arguments, Verizon's top legal counsel told the courts that this is exactly what the company plans to do. Their intentions are no secret, despite contradictory statements made this week by ISP executives and their lobbyists, who say we should trust carriers not to tamper with the Internet.
The Times writes that this "commitment to an open Internet could change in the future... That's why it's important for the commission to reclassify broadband as a telecommunications service."
And the Times is not alone. Thus far several prominent voices and publications have called on the agency to do the same.
Reclassifying broadband would return the FCC's to an established tradition of oversight, treating customer-facing communications networks as common carriers.
Under this standard, defined under Title II of the Communications Act, a network provider cannot block, slow or discriminate among websites and services. For instance, Verizon wouldn't be allowed to block your use of FaceTime, Google Hangout or Skype to favor of its own video-calling service.
As chair of the FCC in 2002, Michael Powell bowed to industry and shifted the FCC's authority over broadband access to Title I, which had been reserved for "information services" like applications and websites. (Years after leaving the FCC Powell slid into the top job at industry lobbying group the National Cable and Telecommunications Association). The FCC has since had the messy job of justifying its authority to prevent censorship by carriers under Title I.
Tim Wu, the Columbia Law professor who is credited for coining the term "Net Neutrality," told the Washington Post that the legal concoction rejected by the court on Tuesday was a "FEMA-level fail," as the FCC attempted to shoehorn Net Neutrality protections under Title I authority.
"[The decision] leaves the Internet in completely uncharted territory. There's never been a situation where providers can block whatever they want," Wu said. "For example, it means AT&T can block people from reaching T-Mobile's customer service site if it wanted."
"The obvious alternative would have been to do what the FCC should have done and -- in the future tense -- now should do, which is to reclassify broadband under Title II," Wu writes.
For Susan Crawford, visiting professor at Harvard Law School and author of Captive Audience, our predicament is the result of historic failures in policy. When Michael Powell's FCC in 2002 reclassified broadband under Title I, it assumed that phone and cable companies would battle it out for market share and that competition would take the place of regulation.
"That assumption turns out to be wrong in the long run," Crawford wrote during an online Q&A on the social media site Reddit. "Where consolidation is possible, competition is impossible. And that's what we've seen." For evidence Crawford had to point no further than Charter and Comcast's multibillion-dollar takeover bid for Time Warner Cable this week.
With the justification for Title I authority in shambles, Crawford urged the commission to craft a light-touch Title II approach that applies only to high speed access providers and preserving the open Internet.
"This is not about [regulating] 'the Internet,'" Crawford said. "This is about 'Internet access. Different things. This is about the sidewalk, not the conversation. The sidewalk should be treated as a regulated service -- neutral, nondiscriminatory, serving everyone in the country -- just like the telephone."
Michael Hiltzik of the Los Angeles Times, writes that blame for today's mess falls squarely on the head of recently departed FCC Chairman Julius Genachowski:
"Faced with the implacable opposition of the cable and telecommunications industry, he stopped short of reclassifying cable modems as telecommunications services. The result was the tatterdemalion policy that the court killed [on Tuesday]."Hiltzik has joined the chorus for reclassification. "The only course is for public pressure to overcome industry pressure," Hiltzik concludes. "That's a tough road, but there's no alternative."
Indeed, the public has the power to convince the agency, and its new Chair Tom Wheeler, to do right and reclassify.
While many in Washington, including Wheeler, may want to shy from this fight, Internet users can't let them. The open Internet is too important to fiddle away.