In Net Neutrality Ruling, the Bad Guys Win—for Now

Net neutrality isn't a fair fight. It's an abstract issue concerning whether Internet service providers can treat different kinds of data in different ways, and to understand it, people mainly look to see who's on which side of the battle. That turns out to be, in the pro camp, innovative Internet companies like Google and Yahoo, who have playful logos and give you stuff for free, versus scary cable megaliths like Comcast, a.k.a. the guys who gouge you monthly and schedule installation appointments for eight-hour windows. It's the wide open future of the Internet versus roadblocks and toll-taking. There may not be a clearer good-guys/bad-guys fight in all of technologydom. There's a third player, too, a kind of white knight—the Federal Communications Commission's baby-faced new chairman, Julius Genachowski. A college and law-school chum of President Obama's, Genachowski has made net neutrality one of his signature issues, viewing it as a part of the bedrock on which America's Webby future will rest. In his mind, to be for net neutrality is to be on the side of history.

Well, when the history of the Internet does get written, a few decades hence, it will recall that today in Washington, the bad guys won. The U.S. Court of Appeals for the District of Columbia unanimously ruled [PDF] that the FCC does not have the authority to force Internet service providers to obey the principles of network neutrality. is a major battle lost for Genachowski's camp, although the FCC has several paths of recourse. One, an appeal to the Supreme Court, is iffy. Another is to pursue what's known as the "nuclear option," and reclassify broadband Internet as a communication service just like the nation's phone system, bringing it fully under FCC regulation.

Would Genachowski go that far, undoing virtually all of the Bush-era FCC's policies? Yes. In September, he gave a major address about net neutrality without ever actually uttering the phrase. But he concluded with these strong words:

We are here because 40 years ago, a bunch of researchers in a lab changed the way computers interact and, as a result, changed the world. We are here because those Internet pioneers had unique insights about the power of open networks to transform lives for the better, and they did something about it. Our work now is to preserve the brilliance of what they contributed to our country and the world. It's to make sure that, in the 21st century, the garage, the basement, and the dorm room remain places where innovators can not only dream but bring their dreams to life. And no one should be neutral about that.

The importance that Genachowski et al. place on net neutrality has never remotely been in doubt. In February 2009, months before he was confirmed as FCC chairman, at a private dinner in Manhattan, Genachowski spoke about the Internet's role in the election of President Obama and in America's future. He was circumspect about details, but Genachowski spoke unreservedly about the need for certain core protections if the country was to remain at the fore of the Internet revolution. It's just that important.

The specific practice that led to today's ruling was a fairly narrow one, having to do with throttling (slowing) traffic on BitTorrent networks, but there are many scenarios in which net neutrality is an issue. Let's say Video Site A and Video Site B are rivals. An ISP would love to be able to say, "Whoever pays me more, I'll make their videos transmit faster and the other site's videos transmit slower." That's obviously not in the best interest of Web users: video sites should compete on the basis of innovation, design, search, or any of a hundred other metrics, but not on who can best bribe the ISP.

The ISPs' side of the argument is that they've spent a lot of money to build high-speed networks, and that it's unfair that other companies get rich off of their infrastructure. To this, net neutrality advocates say—well, they generally change the subject and historicize the debate. If the Webby future is going to happen, they argue, greedy ISPs can't be allowed to be tollbooth operators. Tomorrow, a Web site will be created that does Amazing Thing X, and people don't want Comcast, Verizon, or another pipe-layer to be able to gate the pace of invention until they're cut in on the money.

The fact that the decision on net-neutrality policy will come out of the first administration to truly be born online is not lost on anyone. That feeling of historical inevitability, the sense that things just have to work out this way in order for the Internet revolution to continue to occur, is among the factors driving Genachowski's decision. Few battles have such clearly drawn lines of good guys and bad guys; even Comcast, in a brief and muted statement on its victory in court, said its "primary goal was always to clear our name and reputation" and pledged to work with the Obama administration to "preserve an open and vibrant Internet." Today's court ruling was a setback, but the future and culture of the Internet is not really in doubt.