Some further points on my network neutrality article in Wired

I published a piece in Wired today called “We’re About to Lose Net Neutrality — And the Internet as We Know It.” It is apparently #1 on Wired, front-paged on Reddit, and receiving many thousand views at the same time. 

I’ll use this space to expand on some points. This won’t make sense unless you read the Wired article probably, or know the issues.

1. The legal mumbo jumbo

The court will likely uphold the FCC’s authority to regulate the Internet in many ways (perhaps to do mischief or help out the telcos and cable companies) but likely strike down the FCC’s authority to do one thing: enforce network neutrality. I wrote the piece because I didn’t want people to be confused by language like this: “The FCC has authority under 706 of the Telecom Act to regulate the Internet, and to forbid blocking of websites, but lacks authority under 47 USC s. 153 (forbidding applying common carrier rules to a Title I service) to enforce an anti-discrimination principle.” Translation: net neutrality is dead. Don’t be confused.

2.   How can anyone predict the court’s decision?

You can’t be sure. But the oral argument went on for 2 hours, an hour longer than scheduled, and the judges weren’t hiding their thoughts. The media in the room reported that the court would likely make the decision I described above–regarding 706 and 153. Many just wrongly thought that was a “split the baby” decision when it was a complete loss for all of us. I wrote the article partly to clear up that misimpression.

Also, many people are afraid of predicting decisions, should they end up with egg on their faces if wrong. I’m willing to take that chance here.    

3. EFF’s worst nightmare.

Many great tech advocacy groups support adopting network neutrality rules by law–Free Press, Public Knowledge, and others. The EFF (which is also great) is a partial exception: it generally supports network neutrality as a concept but has been worried about giving the FCC the authority to do any meddling in Internet regulation, including net neutrality. That’s because the FCC is an agency often beholden to telecom and cable companies.

The court will likely decide that the FCC has authority regulate the Internet broadly under one provision (706 of Telecom Act) but not to do network neutrality under another (found at 47 USC s 153). So the FCC will be empowered to meddle, perhaps to do mischief to benefit the carriers, but forbidden to help Internet users through anything like net neutrality. (My friends at EFF should just let me if I’m wrong.)


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