Our Opinion on “The Opinion”
After much anticipation, the DC Court of Appeals finally issued its decision on Verizon’s appeal of the FCC’s 2010 Open Internet order (commonly called net neutrality). While it’s a fair assumption that we can expect a host of “sky is falling” pronouncements from predictable quarters, it’s worth taking a hard look and what the court said and what the decision means for consumers.
What did the Court say?
The court affirmed the authority of the FCC to regulate Internet practices under section 706 of the Act, but held that such authority was not unbounded. Specifically, the panel upheld the FCC’s rules requiring broadband providers to be transparent in detailing their network management practices, but vacated and remanded parts of the Open Internet Order imposing anti-blocking and anti-discrimination rules as inconsistent with the Act’s express prohibition against imposing common carrier rules on non-common carrier services.
What’s the effect on consumers?
In a decision where neither side can claim a full and complete victory, it’s ironic that the big winner coming out of the court’s decision could end up being one person who wasn’t a litigant — the consumer. Why, you ask?
First, despite the significance of the legal issues involved, it’s worth remembering that the court’s opinion has little, if any, immediate impact on the Internet experience that consumers today know and love. As a practical matter, it means that cable broadband customers will continue to enjoy the same fast and open Internet experience they’ve enjoyed over the past decade plus.
Second, in upholding the FCC’s authority to promote transparency, the court recognized the important role that the Commission should play in overseeing a well-functioning Internet market place while recognizing that there are appropriate limits to that authority.
Third, by rejecting part of the FCC’s rule that had essentially imposed a per se rule precluding ISPs from offering options for service enhancements, the court removed a major barrier to the continued evolution of diverse business models that may be beneficial in supporting and sustaining the growth of next-generation networks.
What happens now?
Only time will tell. The parties to the case will review their legal options and determine their own best course of action. But in the interim, the cable industry will strive to maintain its focus in offering consumers reliable Internet offerings and in hoping that the Court’s decision establishes a workable legal framework that will promote continued private investment and the regulatory humility necessary to allow competitive forces in the marketplace to do their thing.