Last week the D.C. Circuit Court of Appeals heard a case that could have massive reverberations for the millions of Americans that use the internet. The litigants are the Federal Communication Commission and Verizon. The New York Times characterizes the fight thusly:
“Verizon and a host of other companies that spent billions of dollars to build their Internet pipelines believe they should be able to manage them as they wish. They should be able, for example, to charge fees to content providers who are willing to pay to have their data transported to customers through an express lane…The F.C.C., however, believes that Internet service providers must keep their pipelines free and open, giving the creators of any type of legal content — movies, shopping sites, medical services, or even pornography — an equal ability to reach consumers.”
One factor to keep in mind, however, is that the D.C. Circuit Court ruled in favor of Comcast in similar litigation in 2010. In that case, the Court ruled that the F.C.C. did not have the authority to regulate and punish an Internet Service Provider for blocking access to a website; the Court could rule once more that the F.C.C. overstepped its bounds with its “Open Internet Order,” which the agency published in December 2010.
But how should the internet be regulated? On the one hand, Verizon and other telecom giants do have a point: if they built the highway, it seems right to let them decide who can drive on it and how fast. Moreover, companies like Verizon do not have a history of conducting the type of internet blocking that the F.C.C. fears. Only 4 such incidents of internet blocking have been documented in the last 6 years. For its part, Verizon has even argued that the F.C.C.'s current internet regulatory scheme implicates the First Amendment. Verizon argues that it has the right to pick and choose what to provide along its pipeline, like a newspaper editor picks stories to print (though it is unclear how Verizon would exercise its editorial power in a broad way, and it could even leave it liable for illegal websites that use Verizon as a conduit).
Allowing the F.C.C. the authority to regulate the internet, and thus the massive scope of activity that occurs in the web, would be a tremendous expansion in the agency’s power. But advocates say the agency is best equipped to defend net neutrality, which is important for many reasons. First, without net neutrality the large corporations with well-established access to capital markets would be in a strong position to prevent new start-ups from disrupting the telecom market. Net neutrality advocates fear that companies like Google and Facebook would have the upper-hand over start-up competition in an arm's race over faster internet service. Further, if Verizon could choke off certain avenues of its network, it would actually have an incentive to throttle bandwidth for everyone in order to reap the benefits of charging premiums for faster access. With most Americans having only one or two broadband options to choose from, there is little besides the F.C.C. to stop telecom giants from acting as internet overlords.
Although government regulation often creates more problems than solutions, it might be best to expand the F.C.C.’s powers in this case. Given the monopolistic nature of internet’s infrastructure and its current unique platform as the ultimate conduit of free speech, it doesn’t seem prudent to leave all that power in the hands of a few corporations.
*Thomas Warns is a J.D. Candidate at the New York University School of Law, Class of 2015, and a Staff Editor on the Journal of Law & Liberty .