Any semblance of net neutrality in the United States is as good as dead. The United States Court of Appeals for the District of Columbia on Tuesday struck down the Federal Communications Commission’s 2010 order that imposed network neutrality regulations on wireline broadband services. The ruling is a major victory for telecom and cable companies who have fought all net neutrality restrictions vociferously for years.
The original FCC order said that wireline ISPs “shall not block lawful content, applications, services or non-harmful devices, subject to reasonable network management” while also mandating that ISPs “shall not unreasonably discriminate in transmitting lawful traffic over a consumer’s broadband Internet access service.”
In its ruling against the FCC’s rules, the court said that such restrictions are not needed in part because consumers have a choice in which ISP they use.
“Without broadband provider market power, consumers, of course, have options,” writes Judge Laurence Silberman, one of the judges on the panel, in his opinion in part agreeing and in part dissenting from the court’s decision. “They can go to another broadband provider if they want to reach particular edge providers or if their connections to particular edge providers have been degraded.”
For anyone who lives in a market with limited competition for home broadband services, Silberman does acknowledge that you might have some “difficulty” in finding another provider but says that it’s still not reason enough to restrict what an ISP can do when it comes to managing its own traffic.
“To be sure, some difficulty switching broadband providers is certainly a factor that might contribute to a firm’s having market power, but that itself is not market power,” he asserts. “There are many industries in which switching between competitors is not instantly achieved, but those industries may still be heavily disciplined by competitive forces because consumers will switch unless there are real barriers.”
In fact, Silberman actually argues that the United States is overflowing with competitive options in the home broadband market and cites Google Fiber — which is currently available in only three markets — as evidence that competition is robust.
“But there is no evidence in the record suggesting that broadband providers are carving up territory or avoiding head-to-head competition,” he writes. “At least anecdotally, the opposite seems to be true. Google has now entered the broadband market as a direct competitor.”
