As they have in the past, the U.S. Court of Appeals for the District of Columbia Circuit has found today that the FCC acted illegally when they imposed anti-discrimination rules on broadband Internet providers. In doing so, they have struck down the FCC's Open Internet rules, which were an attempt to solve a problem that doesn't exist: rampant discrimination by ISPs against various forms of content. (See the bottom of this article for an embedded version of the Court's decision.) Lucky for all of us, the network has not been neutral so far; it would have been far less useful and developed if it had been.
Sadly, a majority of the three judge panel told the FCC how they might be able to impose their regulations within the law. Where the matter goes from here is unclear; the Commission might take the Court up on their suggestion, Congress might change the law to foreclose such an option, or — and this would be the best outcome — nothing happens, and Net Neutrality is allowed to slip into the ash heap of history.
I must disagree with my esteemed colleague Steven J. Vaughan-Nichols who seems to think that letting the decision stand will change things in the real world. When he eulogizes Net Neutrality "1968 - 2014" he gives the impression that what we have been experiencing these last few decades is net neutrality. This may have been true a long time ago, like the early 90's, back when network management was primitive, but not since then. Just as traffic needs to be managed on a corporate network in order to provide the best and fairest performance for all, ISPs have to manage traffic.
One simple example of this is from the last time the DC Circuit Court shot down FCC Net Neutrality rules: Bittorrent users on their network were hogging all the locally-shared bandwidth, ruining the experience for most customers in that area. Without any other technical option at the time, Comcast temporarily blocked Bittorrent for those users at the protocol level. The Court said then, as it said today, that the FCC had no statutory authority to regulate network management as they did. Since then, Comcast has implemented more sophisticated methods of throttling users who consume too much bandwidth in an application-independent manner.
The Comcast example is one of a very few real-world examples of network management having a real impact on end-users. In fact, not only were Comcast's actions reasonable, they were the right thing to do and they were designed to affect only those causing the problem, with a benefit for all other users. Have ISPs ever actually blocked applications for self-serving ends? There's basically one example: Madison River Communications, which in 2005 was charged by the FCC with blocking VOIP traffic on its network to protect their own telephony services. The company signed a consent decree with the FCC not to do it anymore and paid a fine.
Just as NN advocates said back then, they say now that all hell will break loose. According to Harvey Anderson, Senior Vice President, Business and Legal Affairs for Mozilla:
"The D.C. Circuit's decision is alarming for all Internet users. Thanks to a legal technicality, essential protections for user choice and online innovation are gone. Giving Internet service providers the legal ability to block any service they choose from reaching end users will undermine a once free and unbiased Internet. In order to promote openness, innovation, and opportunity on the Internet, Mozilla strongly encourages the FCC and Congress to act in all haste to correct this error."
The future sure sounds horrible! Only the government can save our freedom on the Internet. (Hmmm... Something sounds wrong about that...)
Let's assume Anderson's dystopian vision is true and ISPs can start discriminating willy-nilly. Why would they do that? There's virtually no history of them attempting to do it in the past. For many people there is only one ISP choice, but for many there are options. I'm in New Jersey and the large majority of the state has a choice of more than one broadband provider (in my case Verizon and Comcast).
Now in fact, as I said above, we haven't actually been living heretofore in a world of net neutrality. Rather, ISPs have been using some pretty aggressive and non-neutral techniques to provide the best performance for their users to access important services. Consider paid peering, also known as CDN or content distribution networks, most famously implemented by Akamai.
What do Akamai and other CDNs do? They work with ISPs to put connections from their networks directly into the ISP's points of presence (a CO or central office for a phone company, for example). In this way, providers on the CDN get closer, faster access to users and get to avoid potentially malicious traffic on the main circuits.
Content providers pay extra to get on the CDN and, therefore, to get better, faster access to end users. That's not neutral at all. But it is fair and it is good for users. Services like Netflix, even YouTube, would be unusable without CDNs. CDN isn't the only example of beneficial, "non-neutral" network management, but it's the best one because it's impossible to reconcile CDNs and NN principles. One result is that the FCC's pronouncements on paid peering are incoherent.
Back to the Comcast/Bittorrent example: On any ISP architecture there is an element of shared bandwidth. On some, like cable modem, there may be more than on others, but in any case the fact that users are sharing bandwidth means that it's the job of the ISP to manage the network traffic so as to give the best experience they can to all users. The FCC's "Open Internet" rules purport to allow reasonable network management, but the FCC's actions in the Comcast case show that they have an unreasonable definition of "reasonable."
For these and other reasons, I do hope that this latest appeal represents the last death throes of Net Neutrality, and that it is now dead and buried.