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Originally published January 14, 2014 at 8:35 PM | Page modified January 15, 2014 at 12:12 PM

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Court ruling guts ‘Net neutrality’; will Web access go to high bidder?

Internet-service providers will no longer be required to treat all kinds of Web activity equally, a federal appeals court ruled Tuesday in a decision that could dramatically reshape online access.


San Francisco Chronicle

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Internet-service providers will no longer be required to treat all kinds of Web activity equally, a federal appeals court ruled Tuesday in a decision that could dramatically reshape online access.

The decision overturns key parts of the Federal Communications Commission’s “Net neutrality” regulations, which barred Internet providers from restricting speeds or even blocking visits to different sites.

Analysts say the ruling could allow providers to slow down sites like bandwidth-heavy Netflix or Google and force them — or their visitors — to pay for faster access.

Verizon, a leading provider of landline and wireless-phone service as well as Internet access, had accused the Federal Communications Commission (FCC) of overreaching in its 2010 “Open Internet” order, which barred broadband providers from discriminating against or blocking any data distributed over their networks — a goal of those advocating a concept also known as Net neutrality.

Verizon, which brought the case to the U.S. Court of Appeals for the District of Columbia Circuit, argued that because it built its network, it has the right to manage its costs and services as it pleases.

Judges said that although the FCC has oversight of how Internet providers manage traffic, its regulations were overreaching, largely because of the agency’s decision eight years earlier that classified broadband as an “information service” rather than as a “common-carrier” telecommunications service.

The tech world blasted Tuesday’s ruling, saying it could turn the free-for-all that is the Internet into an industry more akin to cable television.

“The D.C. Circuit’s decision is alarming for all Internet users,” said Harvey Anderson, senior vice president of legal affairs for browser company Mozilla. “Thanks to a legal technicality, essential protections for user choice and online innovation are gone.”

FCC Chairman Tom Wheeler said his agency is considering a Supreme Court appeal, and insisted the FCC will not “abandon its responsibility to oversee that broadband networks operate in the public interest.”

“(The FCC) will not disregard the possibility that exercises of economic power or of ideological preference by dominant network firms will diminish the value of the Internet to some or all segments of our society,” he wrote in a blog post.

The ruling is a major defeat for the Silicon Valley lobby, which sought to convince Washington that Web access should remain unconstrained by Internet providers.

But the changes could affect far more than the tech world.

Verizon, Comcast and a handful of other broadband providers control the vast majority of Internet access nationwide, and that lack of competition has sparked concern across a variety of industries.

“Now that the Internet has become the primary mechanism for delivering information, services and applications to the general public, it is especially important that commercial Internet-service providers are not able to control or manipulate the content of these communications,” said Barbara Stripling, president of the American Library Association.

Rashad Robinson, executive director of African-American advocacy group ColorOfChange.org, fears that large private companies may start to squeeze out public discourse online.

“Our communities rely on the Internet to speak without a corporate filter, to access information and connect to the world, and to be able to organize and hold public officials and corporations accountable.”

Verizon insists the ruling won’t result in any changes to Internet access.

“Verizon has been and remains committed to the open Internet which provides consumers with competitive choices and unblocked access to lawful websites and content when, where and how they want,” a spokesman said in a statement. “This will not change in light of the court’s decision.”

Verizon was joined in its fight by conservative and business groups that oppose neutrality rules, such as the Competitive Enterprise Institute.

All told, the widely watched case drew nearly a dozen friend-of-the-court briefs.

Philadelphia-based Comcast, which had promised to follow the open-Internet rules for seven years in order to win the FCC’s 2011 approval for its takeover of NBCUniversal, offered similar assurances.

“We remain comfortable with that commitment because we have not — and will not — block our customers’ ability to access lawful Internet content, applications, or services,” David Cohen, Comcast’s executive vice president, said in a statement. “Comcast’s customers want an open and vibrant Internet, and we are absolutely committed to deliver that experience.”

Consumer advocates have long pushed for Net-neutrality rules.

They argue that without such requirements, broadband providers could give preferential treatment to their own services or those of their affiliates — or could favor data from companies willing to pay more to get their data treated preferentially.

For instance, Comcast could favor NBCUniversal’s TV shows or movies while degrading similar content streaming from Netflix, or could demand that Netflix pay extra fees.

Appeals Judge David Tatel acknowledged such risks, writing that “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, or it might degrade the quality of the connection to a search website like Bing if a competitor like Google paid for prioritized access.”

But Tatel said the FCC could not impose common-carrier-style regulation on the providers after previously deciding to classify them as more loosely regulated “information services.”

While holding open the possibility that the FCC might appeal Tuesday’s ruling, Wheeler hailed its conclusion that the FCC has broad authority to write rules “governing broadband providers’ treatment of Internet traffic,” and suggested there might be other ways to make them stick.

Includes material from The Philadelphia Inquirer



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