A federal appeals court on Tuesday struck down the Federal Communications Commission's net neutrality rules, the regulation that stops broadband Internet providers from blocking or prioritizing traffic. One of the reasons the court cited for its ruling was that consumers can switch between providers, arguing:
Without broadband provider market power, consumers, of course, have options; 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.
Essentially, the court is saying that the rules aren't really necessary because if a provider blocks access to Youtube, for example, consumers can always just change to a provider that doesn't block access to Youtube.  Matt Wood, the policy director at media and technology advocacy organization Free Press, says such reasoning is wrong.  For one, he says, "we don't have enough competitive broadband options, period." 
While broadband has become more widely availabile across the country over the years, some areas still don't have access to wireline broadband service. According to the FCC, about 15 million Americans live in areas still unserved by wireline broadband. As of the FCC's Eight Broadband Progress Report in 2012, that included nearly a quarter of American living in rural areas. But even when people do have access to wireline broadband, they don't necessarily have access to a competitive marketplace.
Here's a U.S. map showing where people have access to at least one wireline broadband provider:
Areas with at least one wireline broadband provider. (broadbandmap.gov)
Areas with at least one wireline broadband provider. (broadbandmap.gov)
And here's where they have access to two or more providers:
Areas with at least two wireline broadband provider. (broadbandmap.gov)
Areas with at least two wireline broadband provider. (broadbandmap.gov)
That's a significant difference. And it shows just how much of the country actually does not have the option to switch providers as the court envisions.
That's not the only problem Wood has with the competition aspect of the ruling: He argues that it doesn't account for the way communications networks are supposed to work because it allows firms to determine what a customer is and isn't able to see on the Web.
"It's also fundamentally wrong because the company that carries your messages shouldn't have the right to block your speech or choose where you go online," he says. "We've had wireless voice alternatives to wired telephones for more than two decades now; but nobody thinks that Verizon should have the right to block the calls on your home phone because hey, you can always just switch to your cellphone."
Andrea Peterson
Andrea Peterson covers technology policy for The Washington Post, with an emphasis on cybersecurity, consumer privacy, transparency, surveillance and open government. She also delves into the societal impacts of technology access and how innovation is intertwined with cultural development.


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Alex Shaver
4:47 PM EST
Single best solution to all this nonsense: Community ISPs. Let a town be their own ISP instead of some ridiculous telco who only exists to gouge as much out of you as they can. Too bad those same telcos actively campaign against community ISP
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jennymurphy1
4:37 PM EST
Old media fights back - and wins. The internet is now, effectively, cable television... Will YouTube lovers now be willing to pay a subscription fee for speedy access? How much would you pay for PewDiePie? Chord
cutters are screwed...
http://mankabros.com/blogs/chairman/2013/10/25/old...
 
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truthwillout
4:37 PM EST
Even setting aside the fairly limited areas where more than one provider is present, just what makes this court imagine that two providers represents robust competition. Or even 3 or 4 providers. I doubt there are very many US citizens enjoying more than 4 providers. Let's face it, this is a very monopolistic set of providers that is motivated by very similar characteristics. The chances are, if your current carrier is restricting something in some way you don't like, pretty much all your optional carriers will be doing likewise.
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LittleOlMe
4:34 PM EST
I think we have to impeach a lot of judges and justices.

They are all corporate shills leading us to corporate enslavement.
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truthwillout
4:32 PM EST
A slightly off topic question - on that two or more provider map, I wonder why North Dakota has so much better competitive coverage than any of the neighboring states?
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GenotheGreat2003
4:35 PM EST
Oil; banking
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truthwillout
4:44 PM EST
Did a bit of looking. Oil seems to be part of it, OK, but the big kick off was 10 years ago when the oil boom was in its infancy. The state launched a rural broad band initiative that has paid off big time, and the oil helped keep the initiative going through the rough recession patch. This is the kind of initiative the whole country should have been doing. Here's a summary article:

http://blandinonbroadband.org/2013/01/19/north-dak...
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EllenK1
4:32 PM EST
I heard the problem was the internet has beendefined as an "information network" rather than a utility, thus limiting the FCC's powers. I think broadband providers are utility providers, and should be treated as such.
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garyinsantafe
4:28 PM EST
This may work well in the cities but us country folk are lucky to have one broadband provider.
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fgoodwin
4:21 PM EST
Does that North Dakota map of two or more providers look odd to you?
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CDooge
4:28 PM EST
See earlier article in Wash. Post about low estate taxes and financial industry in N.D., that's my guess for all the green. 
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SeanF
4:15 PM EST
While the basic premise of the large market power of ISPs is sound, the particular quote used from the opinion in this article actually comes from the dissenting judge. The majority found that market power did not need to be established, or in the alternative, that it had been established by the FCC. See pages 39-43 of PDF of the decision.
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Federal appeals court strikes down net neutrality rules


A federal appeals court has struck down the Federal Communications Commission's net neutrality rules, which prohibited Internet providers from blocking or prioritizing Web traffic.
The decision on Tuesday is the latest in a lengthy legal battle over whether the FCC can regulate the Internet. In an opinion written by Judge David Tatel, the U.S. Court of Appeals for the District of Columbia found that the network neutrality rules contradicted a previous FCC decision that put broadband companies beyond its regulatory reach.
"Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers," Tatel wrote, "the Communications Act expressly prohibits the Commission from nonetheless regulating them as such."
At stake here is an Internet provider's ability to charge Web companies such as Netflix for better service, which public interest advocates say may harm consumers.
Verizon led the charge against the FCC's net neutrality order, suggesting in oral arguments last fall that it would like to pursue different service pricing models.
"I’m authorized to state from my client today that but for these rules we would be exploring those types of arrangements," said Verizon lawyer Helgi Walker in September.
In a statement Tuesday, FCC Chairman Tom Wheeler indicated he was considering an appeal to the decision.
"We will consider all available options, including those for appeal," Wheeler said, "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."
Broadband is currently classified by the FCC as an information service, a category that gives the agency a fairly limited set of regulatory options. If Internet providers were classified instead as common carriers, the FCC's rule would likely stand. In fact, the federal ruling on Tuesday upheld the FCC's net neutrality rules as a matter of principle; the problem is that the agency effectively tried to apply its powers in the wrong context.
Faced with this dilemma, the FCC may either choose to argue that its regulations do not fall under the rubric of common carriage, or attempt to reclassify broadband as a common carrier, according to outside observers. Neither path is likely to be easy, as major industry players are likely to resist any attempt to reclassify broadband under Title II of the Communications Act.
"The reclassification is politically tricky but legally clear," said John Bergmayer, a senior staff attorney at Public Knowledge, which supported the FCC's rule. "The other question involves lawyers arguing for hours about what is and isn't common carriage. That's politically easier, but legally more difficult."
Denying that the FCC's open Internet order reflects common carriage regulation isn't likely to be a winning strategy, said Tim Wu, the Columbia University law professor who first coined the term "net neutrality." That's because the very notion of non-discrimination is central to common carriage, an idea that itself dates back to medieval times.
Brian Fung
Brian Fung covers technology for The Washington Post, focusing on electronic privacy, national security, digital politics and the Internet that binds it all together. He was previously the technology correspondent for National Journal and an associate editor at the Atlantic. His writing has also appeared in Foreign Policy, Talking Points Memo, the American Prospect and Nonprofit Quarterly.