Net neutrality: Mostly dead or all dead?

When the Federal Court of Appeals struck down the FCC’s Net neutrality rules this week, it unleashed a raft of concerns about the future of the Internet. Far from deciding the issue once and for all, the court ruled that while the FCC does not have the authority to prohibit Internet service providers from selectively blocking or slowing Web traffic and applications, it does have some authority to regulate broadband. And as Miracle Max says in “The Princess Bride”: “There’s a big difference between mostly dead and all dead. Mostly dead is slightly alive.”

“Mostly dead” is the condition that many proponents of Net neutrality rules currently see and fear. As InfoWorld’s Serdar Yegulalp notes, “What’s most unpleasant about this ruling is it doesn’t destroy everything in one swoop, but rather leaves open a door for first one kind of neutrality, then another, then another, to be constricted in turn.”

Others see Net neutrality as still “slightly alive,” with a chance for being salvaged. InfoWorld’s Paul Venezia writes that “the crux of the matter here is that the FCC never classified Internet service providers as common carriers, which legally must stay neutral about the content they carry. … The FCC could take this opportunity to undo that great disservice by declaring ISPs common carriers. After all, in reality, that’s what the ISPs are, and they should be treated as such.”

Many never saw any need for neutrality rules, which prevent carriers from discriminating or blocking content and assure users of unfettered access to services and content on the Internet. Those opponents, like Forbes, say “there was no visible harm on the Internet of the sort that the network neutrality rules were intended to cure…. Of course, an isolated problem here and there emerged … [but] if there were something wrong with a consumer’s Internet provider, a competitor or two is eagerly awaiting.”

Even the Electronic Frontier Foundation, which has long supported Net neutrality, voiced concerns it could be a Trojan horse for broader Internet regulation and has warned against the FCC having “broad powers to regulate the Internet for any reason that strikes the commissioners’ fancy.”

But InfoWorld’s Bill Snyder has made a strong case that without Net neutrality provisions, we’re in for a future where Verizon and other carriers turn the Web into a pay-per-view toll road. Snyder says:

As it stands now, you pay your Internet service provider and go wherever you want on the Web. Packets of bits are just packets and have to be treated equally. That’s the essence of Net neutrality. But Verizon’s plan, which the company has outlined during hearings in federal court and before Congress, would change that. Verizon and its allies would like to charge websites that carry popular content for the privilege of moving their packets to your connected device. Again, that’s not hypothetical.

Verizon … claims that it has a right to free speech and, like a newspaper that may or may not publish a story about something, it can choose which content it chooses to carry. “Broadband providers possess ‘editorial discretion.’ Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others,” Verizon’s lawyers argue in a brief.

NPR, commenting on this week’s ruling, noted the stifling effect not only on Web content, but on Internet startups as well:

Net neutrality advocates fear that if the federal government stops enforcing rules to keep the pipelines free and open, then certain companies will be able to get greater access to Internet users. That, they say, creates a system of haves and have-nots — the richest companies could get access to a wider swath of Internet users, for example, and that could prevent the next Google from getting off the ground. Judge David Tatel, who was part of the three-judge panel, said that striking down Net neutrality could have negative effects on consumers.

After this ruling, ISPs will be eager to put up tollbooths and negotiate deals for fast/slow lanes on the Internet, but some argue this is not necessarily a bad thing. InfoWorld’s Robert X. Cringely decried the hot air inflating arguments over the court’s ruling and argued that Net neutrality has “weakened infrastructure investment, as evidenced by the fact that the United States is in something like 25th [actually, more like 33rd] place when it comes to average bandwidth to the home, right behind Antarctica.”

While conceding that the ruling will undoubtedly give way to throttling of Web content, Cringely believes “it’ll also bring healthier Internet performance and perhaps more serious dollars devoted to laying fiber to the home.”

Seeing as AT&T, Verizon, and Comcast already collect several hundred billion dollars in revenue each year, it’s hard to put much faith in that argument. And faith — “Who do you trust?” — is the crux of the debate.

Venezia, noting that “U.S. taxpayers directly and indirectly funded a significant amount of the cost of constructing these very networks that the carriers want to turn into pay-per-view networks,” warns readers not to believe carriers’ promises not to hurt customers with changes they make now that Net neutrality is gone: “Don’t believe them. They have a long history of making promises they don’t keep.”

FCC Chairman Tom Wheeler, in a blog post after the ruling, acknowledged the anxiety on both sides of the Net neutrality question, while assuaging neither:

I am committed to maintaining our networks as engines for economic growth, test beds for innovative services and products, and channels for all forms of speech protected by the First Amendment. We 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.

Can Wheeler, an ex-cable-company lobbyist, exercise his agency’s authority to make sure broadband providers operate in the public interest, or will Net neutrality prove in the long run to be “all dead”? Back to the words of Miracle Max: “With ‘all dead,’ there’s usually only one thing you can do — go through his clothes and look for loose change.” If the FCC fails to act, it’s consumers’ pockets that are likely to get rifled through.

This story, “Net neutrality: Mostly dead or all dead?,” was originally published at InfoWorld.com. Get the first word on what the important tech news really means with the InfoWorld Tech Watch blog. For the latest developments in business technology news, follow InfoWorld.com on Twitter.