Net neutrality faces serious setbacks

First, a primer for the uninitiated on “net neutrality.”

Net (as in network) neutrality is the idea that all traffic on the Internet should be treated equally and — more to the point — should come at the same price. Right now, for instance, you don’t have to pay more to watch a YouTube video than you do to check your email, even though the YouTube video eats up more bandwidth and, in theory, costs your ISP more for you to watch.

Websites and most consumers love the idea of net neutrality.

ISPs, on the other hand, are not fans. In fact, the net neutrality movement arose as a response to major ISPs’ plans to attempt to charge websites and service providers more for “better” service on their networks. Fail to pay up and that YouTube video might take twice as long to download … or it may not download at all.

ISPs call this the cost of doing business and a necessary reality in an era where bandwidth isn’t growing but the amount of data being pushed through the available pipes is.

Net neutrality proponents call this extortion.

No matter who is right, things were looking up for net neutrality fans after the FCC and the Obama administration came out with specific and strongly worded recommendations and plans that they would push for net neutrality as the Obama broadband program (100Mbps to everyone!) moved forward.

But the showdown had already begun prior to the Obama era, way back in 2007, when Comcast, the country’s largest cable company, began throttling BitTorrent downloads, effectively putting a speed limit on how fast they could go. The FCC put the kibosh on the practice, and ISPs, led by the mammoth Comcast, sued. Then the FCC announced even more sweeping rules that it planned to enact in the future.

This week, a major legal ruling was handed down in the Comcast case, and the tide has now turned in favor of the ISPs. The District of Columbia Court of Appeals said that the FCC had overstepped its authority in mandating net neutrality and that ISPs should be free to manage traffic however they see fit, noting that under current law, the FCC does not have “untrammeled freedom” to regulate broadband services. (In other words, Congress would have to specifically grant such powers.) The ruling was unanimous among the three judges on the panel.

Now net neutrality fans find themselves facing a serious uphill climb. Not only does the ruling open up the way — for now — for ISPs to ask websites and service providers for money; it might also allow them to restrict certain services from running on their networks entirely. Comcast, for example, may not want you to watch Hulu on its service, since then you’d have less of a reason to pay $60 a month for cable TV. It may also be able to ban VOIP services like Skype, so you’ll pony up another $20 for wired telephone service. The dominoes are already lining up.

What happens now? The FCC has more tricks up its sleeve. As the MSNBC story above notes, broadband service could be reclassified to fall under the other heavily regulated telecommunications services that the FCC oversees, but that would likely result in additional legal wrangling and longer delays for the broadband plan to go into effect, a so-called nuclear option that would turn the world of broadband into a bit of a bureaucratic nightmare.

If it doesn’t take this route, the FCC will instead have to ask Congress for the power to implement net neutrality rules as it sees fit, but that’s a political game in a time when Washington seems awfully low on political capital. Don’t rule out an appeal to the Supreme Court, either.

Stay tuned — for as long as your Internet service holds out, anyway.

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