It Was Nice While It Lasted ?

The “level playing field” of the Internet, that is.

a01-nl-vert-wolff-24-1306181153_3_4If you’ve been befuddled by the recent Appeals Court decision on the subject of “Net Neutrality,” Michael Wolff does a pretty good job of explaining what it could mean.

Power begets power and enables you to hold onto power. Owners of the pipes can charge what the market will bear. …Though Netflix will have to pay much more for distribution, it is large enough to be able to afford that bill. Its nascent and would-be competitors cannot. And without access to low-cost distribution

It’s not entirely clear that this loss of “neutrality” is a final ruling.  It could yet go to the Supreme Court  – though given that august body’s preferential treatment of corporate interests, it’s hard to fathom how the Appeals Court ruling could be reversed;  Or the FCC could revisit its own mandate, and recast their original ruling under a different mandate.

The genesis of the recent ruling appears to be the jurisdiction under which the FCC originally ruled that ISPs like Comcast, AT&T an Verizon could not charge for access to their networks:

The court just invalidated the way the FCC tried to make Net Neutrality rules in a 2010 order. The judges rejected the legal framework used by the FCC and said the agency currently lacks the authority to implement and to enforce these rules…The silver lining is that there’s nothing in the court’s decision that prevents the FCC from reversing its earlier misguided decisions and treating broadband under the law as the “telecommunications service” it so obviously is.

So the fact of the matter is that nothing has been decided.  We’re in limbo.  The FCC could go back to the drawing board, in which case the whole thing would be up in the air again for years.

I can’t count the number of times over the past two decades I’ve heard the phrase “level playing field.”  I always did think it was a bit of a mirage.  If the FCC can’t find away to enforce the idea of the pipes as common carrier, even the mirage will probably vanish.



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Paul Schatzkin