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API Journal Authors: Elizabeth White, Yeshim Deniz, Pat Romanski, Liz McMillan, Rishi Bhargava

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The End of Net Neutrality?

Toll Booths and Pay For Access

It has been coming for a while. We have all known this. If Net Neutrality was old Mike Tyson, he has been on the ropes for quite some time just waiting for TKO. And wouldn’t you know it, after years and years of fighting, the knockout punch has finally been swung. Decided on January 14, 2014 by the United States Court of Appeals District of Columbia Circuit, the long standing FCC Open Internet Order was knocked down. The court ruling determined by passing the Open Internet Order (the FCC never used the terminology Net Neutrality) the FCC went far beyond their power abilities to determine how ISP’s manage and deal with traffic across their networks. The FCC ruling meant all traffic was to be viewed in the same manner – equal. The new court ruling is the first step in the process of ISP providers having the ability to determine what traffic gets prime placement and what traffic has to pay a bit more. Call it toll booths barring open Internet access or call it ISP’s regulating a source of global empowerment, the first TKO has been landed against old Mike.

The question now becomes not if Net Neutrality will fall but when? If history serves as any purpose, the war is just starting.

The Ruling

We linked to the ruling up top however, because you might not want to read the entire ruling to discern meaning, here is the portion which matters:


“TATEL, Circuit Judge: For the second time in four years, we are confronted with a Federal Communications Commission effort to compel broadband providers to treat all Internet traffic the same regardless of source—or to require, as 4 it is popularly known, “net neutrality.”
“In Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010), we held that the Commission had failed to cite any statutory authority that would justify its order compelling a broadband provider to adhere to open network management practices. After Comcast, the Commission issued the order challenged here—In re Preserving the Open Internet, 25 F.C.C.R. 17905 (2010) (“the Open Internet Order”)—which imposes disclosure, anti-blocking, and anti-discrimination requirements on broadband providers. As we explain in this opinion, the Commission has established that section 706 of the Telecommunications Act of 1996 vests it with affirmative authority to enact measures encouraging the deployment of broadband infrastructure.”
“The Commission, we further hold, has reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here—that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet—is reasonable and supported by substantial evidence. That said, even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates. Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.”
“Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.”

As Senor Willy Wonka once stated,”It’s all there, black and white, clear as crystal!…you get nothing! You lose! Good day, sir!”



There is Hope Yet

If you listen to the doomsday scenario, the January 14, 2014 ruling spells the quick end to the Internet as we know it. If you listen to the doomsday shouters, the January 14, 2014 ruling means the Internet at we know it, as it exists right now, will end tomorrow. Don’t be fooled, this isn’t the case. As noted by Larry Downes of Forbes, “Doomsday scenarios aside, the reality is that consumers have nothing to fear from this decision. No one disputes the critical importance of the Internet’s open architecture, in which the network’s basic protocols aren’t owned by anyone and improvements are constantly being implemented.” Like everything else, the Internet has evolved.

From the original Internet meant for communications between armed force divisions, to the dial up modem and AOL of the 90′s, to our current ICT broadband and social media culture, the Internet has progressed in stages. There is no reason why the reverse would be any different. We won’t sugar coat this – ISP’s like Verizon, AT & T and Comcast have been pushing hard for the past few years to control – to apply – access gates to the free and open Internet. Major ISP’s have been salivating at the mouth at the prospect of controlling Internet access by way of paid for access. Luckily, forces are mobilizing on the other side of the Net Neutrality fight.

Joint Efforts

Unlike Charlie and Grandpa Joe, the Internet hasn’t lost yet. Although the court ruling dealt a major blow to the heart of what makes the Internet great – open and clear access – forces have been moving for some time to take up the battle for those who believe the Internet should be free and open to everyone. Two of those major forces – Facebook and Google. In this space we have talked about Facebook’s initiative to bring affordable and reliable Internet access to the world. This means bringing reliable and quick Internet access to third world countries and parts of the world which otherwise, due to geographic political and economic issues, would be locked out of the world wide web. The Facebook initiative, Internet.org, means providing economically strapped areas of the world with stable broadband Internet access through local platforms (desktops and laptops) and mobile platforms (flip phones, smartphones and tablets). It also means working with global ISP’s to bring access to deprived areas. This is where Google comes into play.

Say all you want about Google hardware (yes, it isn’t as pretty or sleek as Apple hardware), yet their credentials in trying to bring high speed broadband access to the world is second to none. Through the Google Fiber initiative, Google is actively forcing major ISP’s around the country to provide higher speed broadband access to the masses at lower costs. The idea is simple: The American internet is too slow and too expensive. It got this way due to Capitol Hill lobbying and market insulation. Google Fiber, much to the dismay of Verizon and AT & T, is trying to bring capitalism back into the American ISP market.

It also doesn’t hurt to have Google be in the business of making relativity cheap and ultra mobile laptops. Hello Chromebook!

So, now the question: With Facebook and Google mobilizing to bring the Internet to the world, will ISP providers win the war for Internet access control or is the recent court ruling a single won battle in an overall losing effort?

We hope and will work with all of our might to make the recent court ruling a singular battle. Net Neutrality must win the war.

Read the original blog entry...

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