Court action against FCC’s “net neutrality” rules could change rules of Internet service

The “open” nature of high-speed Internet service in the United States may be at risk based on a new appeals court ruling that struck down the Federal Communication Commission’s “net neutrality” regulations.

Since 2010, the FCC regulations, known as the “Open Internet Order,” have prohibited broadband service providers (ISPs) from blocking access to lawful content. as well as from blocking applications that compete with the  provider’s service offerings. The Order also prohibits providers of fixed broadband service (i.e., non-mobile broadband) from unreasonably discriminating in transmitting lawful Internet traffic, such as by granting preferred status or speeds to websites that are affiliated with the provider or who pay a fee to the provider.

The Court’s decision in Verizon v. Federal Communications Commission struck down most of the Open Internet Order.  In particular, the Court said that the FCC went beyond its regulatory authority in imposing the anti-blocking and anti-discrimination rules on ISPs.

Notably, the Court did not say that the FCC could never impose such rules on ISPs. Instead, the Court found issue with the way that the FCC imposed the rules on ISPs. Specifically, the Court faulted the FCC for creating rules that could be considered common carrier obligations and then imposing them on ISPs that were not considered to be “common carriers” under the Communications Act.

The Court did uphold the Order’s requirement that ISPs disclose to consumers accurate information about their network management practices, performance and commercial terms of service.  So, although an ISP can now block or slow a particular website, it must disclose that practice to its subscribers.

The FCC is expected to appeal the decision.  Alternatively, the FCC could attempt to re-write the rules within the guidelines of the decision. Either way, it will be interesting to see whether any broadband service providers change the way that they deliver services to consumers. Under the Court’s ruling, an ISP who is also a cable service provider could block or slow certain over-the-top services so long as they disclose that fact to subscribers. An ISP could charge a higher fee for access to certain sites, or perhaps a reduced fee to consumers who are  willing to accept a more limited scope of the World Wide Web.   Alternatively, some ISPs may use the Court’s ruling as an opportunity to attract new consumers by pledging to make all sites freely available without blocking or discrimination.

Either way, consumers are likely to see changes in their broadband service soon based on the new ruling.