Since 1970 or so, carriers like A.T. & T. and Verizon have been barred from blocking or degrading whatever is transported over their lines. Although, at the time, the rule primarily concerned long-distance voice calls, that principle, applied to the Internet, has become known more recently as net neutrality. It offers a basic guarantee: that content providers on a network—whether it be YouTube, Wikipedia, or bloggers—can reach their users without worrying about being blocked, harassed, or forced to pay a toll by the carrier. Policing that rule in its various guises has been a core mission of the Federal Communications Commission for the past four decades—and keeping carriers away from Internet content has been among the F.C.C.’s most successful policy initiatives since its creation, in 1934. It is the Magna Carta of the Web; today, there’s not a tech firm or a blog that doesn’t owe something to the open, unblocked Internet.
Yesterday, because of a faulty legal strategy used by the F.C.C., the U.S. Court of Appeals for the D.C. Circuit struck down the law enforcing this principle, leaving the Internet and the F.C.C. in uncharted territory. Without net-neutrality rules, a firm like Verizon or Comcast can do whatever it likes to content moving across its network. If it wants, it can make a blog that criticized its latest policies unreachable, or block T-Mobile’s customer support. Acting together, the Internet service providers could destroy Netflix by slowing its data to a crawl, making movies impossible to watch.
Such obvious outrages are unlikely; the firms will surely promise to behave themselves. But they might, instead, slowly begin bleeding money out of the Internet economy with quiet threats and expensive carrots, extracting fees and tolls wherever they can. “You better pay for ‘turbo’ access, Mr. Blogger, otherwise who knows how long it will take readers to reach your content.” Or, to a new video-streaming service, it might say, “We’re going to put Hulu ahead of you, unless you pay up”—meaning that its customers would have an easier time watching Hulu videos than content from the new guy. A.T. & T., Verizon, and Comcast already collect more than three hundred billion dollars in revenues every year. But, like any good corporate citizen, they’d like more.
That’s not all. These days, Internet firms like Google and Facebook are so powerful that they could decide to turn around and demand that Internet providers pay them for the right to access their sites. This is the norm in cable television, and the situation was painfully illustrated to Time Warner Cable’s customers, this fall, when they lost CBS programming for a month during a fee dispute between the two companies. (CBS ultimately prevailed in extracting higher fees to carry its content.) In the absence of net-neutrality rules—which set a norm of zero prices—we face the prospect of pricing wars pitting all against all, in the Hobbesian sense. The losers will be smaller speakers, nonprofits, and the consumer, who will be forced to pay more for less.
So who lost net neutrality? Tasked by President Obama with codifying the principle, the previous chairman of the F.C.C., Julius Genachowski, was cowed, leading to the present debacle. Put less generously, he blew it. In 2010, the F.C.C. introduced formal net-neutrality rules, in what it called the Open Internet Order. Genachowski, inexcusably, did not use his agency’s main authority over wire communications to enact it. Since its creation, the F.C.C. has had the authority to police all communications by wire in the United States. Instead, Genachowski grounded the rules in what is called—in legal jargon—the agency’s “auxiliary authority.” If the F.C.C. were a battleship, this would be the equivalent of quieting the seventeen-inch-inch guns and relying on the fire hoses.
What could possibly have convinced the agency to pursue a legal strategy that any law student could see was dubious? As in any big mistake, there were compounding errors. Members of Congress threatened to strip the F.C.C. of some of its powers if it enacted the rules with the full weight of its legal authority. (Indeed, Congress tried and failed to overturn the Open Internet Order.) A.T. & T. warned that it would cancel its ongoing effort to become a cable company, threatening to tar the agency with job losses. One senior F.C.C. staffer told me that it would have unduly affected the stock prices of the telecom firms. The agency also had a Kool-Aid-drinking problem; it started to believe its own legal arguments, however weak. Altogether, it was a cowardly reaction to empty political threats.
Tom Wheeler, the new chairman of the F.C.C., now has the unfortunate task of dealing with strategic errors made by his predecessor. Restoring the agency’s long-standing authority over broadband telecommunications is much simpler than it appears. Wheeler needs only to reaffirm that, for Internet firms that want to send information to customers, broadband is a “telecommunications service,” meaning that the F.C.C. has the authority to regulate it. He has both the time and the votes to do so.
It is possible that Wheeler will do nothing, confirming the suspicions of his critics. But it is hard to imagine that he wants to be the man at the helm as the F.C.C. fades, pricing wars break out, and the Internet stagnates into a version of cable television. To be sure, in the short term, one can attract plenty of praise within Washington for not doing one’s job. But Wheeler has been around long enough to understand both the importance of legacy and the judgment of history.
Tim Wu is a professor at Columbia Law School and the author of “The Master Switch.” He has previously served as a senior advisor to the Federal Trade Commission; the chair of Free Press, a Internet advocacy organization; and a fellow at Google.
Photograph by Dan Winters. See a slide show of photographs shot by Winters for our June, 2012, Science Fiction Issue.
