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US appeals court ruling to end 'net neutrality' signals significant online turning point

Mark Leiser: I am a PhD Candidate in Cyber Law at the University of Strathclyde in Glasgow. I have written submissions for the Leveson Inquiry into the culture and ethics of the media and for the Scottish Parliament on the use of social media during trials. My PhD is supervised by Professor Andrew Murray at the London School of Economics and focuses on the effectiveness of cyber-regulation. My research and interests revolve around main areas of Internet law and policy including internet governance & regulation, democracy, social media, privacy, and intellectual property. My PhD research focuses on developing a system of modelling to measure the effectiveness and legitimacy of Internet Regulation. I write in a personal capacity.

Ruling: The US appeals court decision could be a turning point

A ruling by a US appeals court may drastically affect the way we all deal and view multimedia content on the internet. The US Court ruled that the Federal Communications Commission's (FCC) rules on net neutrality were ultra vires and that internet service providers (ISPs) could start charging for content delivery to large web companies like Google and Netflix.

Ending the rules on net neutrality means that a broadband provider like Comcast could limit its end-user subscribers’ ability to access the New York Times website if it wanted to spike traffic to its own news website, or it might degrade the quality of the connection to a search website like Bing if a competitor like Google paid for prioritised access. The ruling means that content heavy networks and internet providers could have their services throttled unless they choose to pay up. An internet telephony service like Skype could be burdened with exorbitant access fees as their product sits in direct competition to traditional telecoms providers like Verizon and AT&T.

It means that ISPs can now start experimenting with different pricing schemes to ensure that companies like Google and Netflix pay higher fees to ensure their content gets delivered faster, and for smaller companies just starting out, it may mean that they are burdened with additional charges to ensure their content gets to a hungry audience, affecting their growth rates. Failure to pay may mean throttled and significantly slower delivery of content to consumers.

It is a specific knockback for the Obama administration, which had approached internet regulation as largely hands-off to allow it to develop and maintain its atmospheric rate of growth. The FCC had passed a series of rules that saw these providers as different carriers rather than traditional telecoms companies. Accordingly, it meant that a series of rules from the FCC to ensure net neutrality couldn’t and shouldn’t apply.

"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," Judge David Tatel wrote for the court.

Net neutrality, a concept penned by Professor Tim Wu, means that US networks and telecoms providers like Verizon and Comcast, have to treat all internet traffic equally. Proponents of net neutrality - or, to use the Commission’s preferred term, “internet openness” - worry about the relationship between broadband providers and edge providers. They fear that broadband providers might prevent their end-user subscribers from accessing certain edge providers altogether, or might degrade the quality of their end-user subscribers’ access to certain edge providers, either as a means of favouring their own competing content or services or to enable them to collect fees from certain edge providers. Currently, a data packet from YouTube is treated in the same manner as a data packet emanating from Skype. For consumers, net neutrality meant equal access to an internet without tiers.

The Internet Society released a statement from Bob Hinden, Chair of the Internet Society Board of Trustees, in response to the news: “Today, the Washington, D.C. Court of Appeals in the United States issued a major decision with regards to the Federal Communication Commission’s Open Internet rules. The Internet Society has consistently argued that the core principles of transparency, freedom of choice, and unimpeded access to content and applications should be at the heart of any policy action with respect to network neutrality.

"Notwithstanding the Court’s ruling today, these principles that have allowed the Internet to grow, scale, and connect people and ideas around the world remain valid. Anything less would jeopardize the continued success and availability of the Internet as a tool for open communication and economic growth.

"The Internet Society urges parties in the United States to keep a sharp focus on the need to create an environment that allows users to remain in control of their Internet experience, thus empowering them to participate in the open Internet.”

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