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A closer look at the US justice system’s rejection of net neutrality rules

After many years of back and forth, over in the US this week an appeals court struck down the Federal Communications Commission's net neutrality rules.

While the court upheld the FCC's right to regulate broadband in general, the net neutrality rules themselves were struck down on a technicality related to how the commission classifies the service delivered by today's largest ISPs. It's a tad confusing, but on this particular issue, the court found that the FCC overstepped its bounds with its net neutrality, or Open Internet, rules.

On a basic level, net neutrality is the concept that everyone should have equal access to the web. Amazon should not be able to pay to have its website load faster than a family-run e-commerce site, for example, so that it would have a competitive advantage on the web. ISPs, meanwhile, can slow down their networks if necessary at peak times in order to manage things more efficiently ("reasonable network management"), but they cannot block a certain application – like BitTorrent – that they believe is hogging too much bandwidth.

But is this something that would actually affect your day-to-day web surfing? It depends on who you ask. Over in America, the issue is split strictly down party lines. Republicans dislike the FCC rules, while Democrats are in favour of them.

The GOP argues that net neutrality rules will stifle competition, with broadband providers hesitant to try out new technologies lest they run afoul of the FCC's rules. The market will regulate bad behaviour, as ISPs won't do anything to drive customers away, the argument goes.

Democrats, however, say that the rules simply provide recourse to consumers who believe their ISPs are treating customers unfairly. In many markets, customers don't have a lot of choice when it comes to telecom providers, so if an American is fed up with their ISP, the rules mean that they can file a complaint with the FCC and have them examine it, if warranted.

After all, the debate got going back in 2007 when Comcast was accused of blocking P2P services like BitTorrent in order to manage traffic flow on its network. The FCC ultimately handed down an "enforcement action" against Comcast in 2008, which kicked off a lengthy legal battle that continued into this week.

The problem is, even though these rules might be helpful for consumers, the FCC does have a bit of a weak argument when it comes to its net neutrality rules. When Comcast challenged the FCC's enforcement action, the court ruled in favour of Comcast in 2010. Still, the FCC got together with its legal team to come up with a way to justify tackling this issue, and forged ahead. But that resulted in Verizon filing suit, and this week the court again ruled in favour of the major US ISP.

So what now? There is the chance that the FCC might re-classify the types of services that it regulates, but that would be a huge undertaking. Last time they did that, it went all the way to the US Supreme Court with the 2005 Brand X decision.

FCC Chairman Tom Wheeler said the commission "will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans." But he has not yet elaborated on what that might entail.

The easiest route would be for the US Congress to pass a law addressing this issue. But since it is split down party lines, and this Congress is not exactly known for getting a whole lot done, that also seems rather unlikely.

Still, members sent out statements this week, pledging to get to work. "I will utilise every arrow in my quiver, including legislation, to make sure the FCC can carry out this critical mission effectively," Rep. Anna Eshoo, a California Democrat, said in a statement.

"Getting rid of net neutrality is bad for consumers and the economy, plain and simple. And it's a real risk to the Internet as we know it. Net neutrality is the common-sense idea that big corporations like Verizon, Comcast, and Time Warner shouldn't control who gets to innovate, communicate, or start a business on the Internet," said Sen. Al Franken, a Minnesota Democrat. "The FCC needs to respond immediately in a way that keeps the internet open to all of us, not just big corporate interests."

Republican Sens. John Thune and Roger Wicker, however, called for a larger overhaul of the existing Communications Act. "It is time for Congress to provide a road map to clarify the FCC's role in the 21st Century communications landscape," they said. "The last thing consumers need is for the FCC to waste more time and money on misguided efforts to regulate the Internet."

For now, American consumers basically have to hope that their ISPs stay true to their pledge of "reasonable network management" and non-discrimination based on application. They could still complain to the FCC, of course, if a problem arises, but thanks to this week's ruling, the agency couldn't do much about it.