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Ruling Could Drive FCC Forward on Net Neutrality

A court ruling this week that seemed on its face to be a defeat for advocates of net neutrality might actually include a road map for how to ensure equitable access for users, according to legal experts and open-Internet advocates.

The 2-to-1 ruling, handed down on Tuesday by a federal appeals court in Washington, D.C., allows Internet-service providers to create tiered pricing for certain types of online traffic. It’s the latest turn in a years-long battle over the Federal Communications Commission’s net-neutrality rules, adopted in 2010, which require Internet-service providers to treat all Internet traffic equally and bar them from practices like blocking access to certain websites or applications.

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit threw out the antiblocking and antidiscrimination rules, saying the FCC could not regulate Internet-service providers in the same way it regulates telephone companies because it had previously chosen to classify the Internet companies as providing information services, not telecommunications services.

Still, the court affirmed the FCC’s ability to regulate Internet-service providers in other ways. In its ruling, it “laid out a path the commission can follow, which is to reclassify high-speed Internet access as a common carriage or utility service,” said Susan Crawford, a visiting professor at Harvard Law School and co-director of the Berkman Center for Internet and Society at Harvard University. ”If the commission does this, its legal authority to speak to high-speed Internet-access providers will be clear. If it doesn’t, we risk having the central infrastructure of the 21st century left to a failed market with little oversight or competition.”

The FCC said it was considering all options, including an appeal.

The principle of “net neutrality,” or giving equal treatment to flows of information on the web, was coined by Tim Wu, a Columbia Law School professor. Advocates say the FCC’s rules safeguard against the erosion of high-speed Internet services for small players, and ensure that content produced by corporations such as entertainment studios doesn’t take priority over other kinds of content.

Internet-service providers like Verizon, which brought the lawsuit against the FCC, argue that they need to charge for high-speed data-traffic lanes in order to pay for the billions of dollars in infrastructure necessary to maintain and expand Internet access.

How the FCC proceeds has broad economic and societal implications. Under Tuesday’s ruling, individuals, companies, and institutions unable to pay for expedited Internet services could be reduced to second-class citizens in the information age, some working on the issue said.

“It is going to be potentially a race to the bottom, where those who can afford to pay to get priority of access get more eyeballs—more readers and viewers—and public institutions that don’t have those kind of financial resources are going to be left behind,” said John Windhausen, president of Telepoly Consulting, which specializes in broadband-communications policy and works with nonprofit institutions.

In an opinion piece for Wired, Barbara Stripling, president of the American Library Association, described an equal-access Internet as essential for educational achievement, freedom of speech, and economic growth.

“High-quality Internet access shouldn’t be restricted to those who can ‘pay to play,’” she wrote. ”Unfortunately, by allowing Internet-service providers to preferentially charge and premium price access, that’s what will happen, and public libraries and the communities we serve will be the ones to lose.”

Prudence S. Adler, associate executive director for federal relations and information policy at the Association of Research Libraries, said she and her colleagues would be watching the FCC’s next move closely.

“A lot of the campus networks are private networks, but when the majority of students may be living off campus, or we have people on MOOCs from around the world, we can’t have different tiers of access to resources,” Ms. Adler said. ”Research libraries spend an enormous amount of money licensing content for our campus community.”

The library associations are two of many groups active in the fight to uphold the net-neutrality rules. Legislation backed by groups such as Educause and Internet2 and introduced in the U.S. House of Representatives in 2006 and 2007 would have made the FCC’s net-neutrality principles federal law. In 2008 scaled-back legislation was introduced that would have required the FCC to take an active role in ensuring providers treat all websites and their content equally. All three bills stalled in committee.

The Berkman Center’s Ms. Crawford, who noted that one of the most promising uses of high-capacity networks lies in higher education, said that Internet-service providers had intentionally created confusion around the issue.

“One of their key arguments is there is plenty of competition for high-speed Internet access in America, and that is simply not true,” Ms. Crawford said. ”When it comes to very-high-capacity connections, the kinds that educational institutions are interested in, the vast majority of Americans have just one choice, and that is their local cable monopoly.”

Still, with a good statute already in place, there is now a way forward, she said. “I am actually quite optimistic.”

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