In a decision widely seen as a victory for the big telecommunication companies and a defeat for defenders of the “open” Internet, the D.C. Court of Appeals struck down the FCC’s “net neutrality” rules on Tuesday. The decision in Verizon v. FCC effectively gives providers of Internet access the right to discriminate in favor of particular Internet services —  to create “express lanes” on the good old information superhighway.

A statement swiftly issued by the American Library Association summed up the glum view of the losing side:

The court’s decision gives commercial companies the astounding legal authority to block Internet traffic, give preferential treatment to certain Internet services or applications, and steer users to or away from certain web sites based on their own commercial interests. This ruling, if it stands, will adversely affect the daily lives of Americans and fundamentally change the open nature of the Internet, where uncensored access to information has been a hallmark of the communication medium since its inception.

But the decision is not necessarily a clear-cut ruling that net neutrality is unconstitutional. The court based its decision on a more technical issue: whether or not the broadband companies could be classified as “common carriers” that are not allowed to give special preferences to any users of their network infrastructure. Since the FCC had previously decided that broadband ISPs are not common carriers, the court ruled that the FCC could not then turn around and regulate the ISPs as common carriers.


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