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Appeals Court Rules FCC Lacks Authority to Enforce Net Neutrality

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A federal appeals court has ruled the Federal Communications Commission lacks the authority to prevent internet service providers from blocking and controlling internet traffic. The FCC has long sought to force internet service companies to give web users equal access to all websites, a concept known as network neutrality. But the decision grants the companies further control over internet traffic while threatening the future of internet regulation. We speak with Josh Silver, co-founder of FreePress.net. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: The Federal Communications Commission faced a major setback Tuesday when a federal appeals court ruled the FCC lacks the authority to prevent internet service providers from blocking and controlling internet traffic. The FCC has long sought to require that internet providers give web users equal access to all websites, a concept known as network neutrality. But the decision will allow internet service companies to block or slow specific sites and throws the future of internet regulations into doubt.

The ruling is a victory for cable giant Comcast, which challenged the FCC’s authority to impose network neutrality obligations on broadband providers. In 2008, the FCC ruled that Comcast had violated federal policy by deliberately slowing its cable customers’ access to a file-sharing service called BitTorrent. But Tuesday’s decision overturns the FCC’s order by a three-to-zero vote.

The ruling could also hamper the Obama administration’s plans to expand broadband access across the country. White House Press Secretary Robert Gibbs told reporters Tuesday the administration is still evaluating the decision, but reiterated the President’s support for net neutrality.

    ROBERT GIBBS: We have not had an opportunity to fully evaluate the FCC’s decision — the decision affecting the FCC, which, as you know, is an independent agency. So —

    REPORTER: Does the administration broadly support the notion of net neutrality, though?

    ROBERT GIBBS: It does.

    REPORTER: It does, right?

    ROBERT GIBBS: It does, it does. And the President discussed that, obviously, in the campaign, we’re committed to that and committed to providing businesses with the certainty that they need, as well.

AMY GOODMAN: For more, I’m joined in Washington, DC by Josh Silver, the executive director and co-founder of the media reform Free Press, freepress.net.

Welcome to Democracy Now!, Josh. The significance of this ruling?

JOSH SILVER: This is huge. And it’s actually fascinating, because, you know, while across the newspapers and television today you’re seeing a huge Comcast victory, actually what’s really happening behind the scenes is a much more interesting and fascinating story.

As you mentioned, Comcast was caught illegally blocking internet content back in 2007. Our group brought a complaint to the FCC. Surprisingly, the Bush FCC ruled in our favor. But what was interesting is Comcast then went to the courts and said, “We were not illegally blocking internet content. But further, you, the FCC, don’t even have authority to regulate us, because of changes that were made back in 2002 by the Bush FCC that made it much more difficult for the FCC to regulate internet.” It kind of has come back as, as my colleague Ben Scott said yesterday, it’s almost like the — Comcast took an ax, swung it at the FCC, cut off their arm, and then it swung around and hit Comcast in the back of the head. And what I mean by that is, yesterday’s ruling makes it such that the FCC cannot legally regulate any of the internet unless the FCC themselves make some changes.

This has huge implications. Keep in mind, we have a president who has avowed his commitment to net neutrality, the idea that all content moves across the internet at the same speed. We have a huge national broadband plan that came out a month ago by the FCC with a goal of getting universal deployment. It talks about how if you want to get a job, you need to have access to the internet. It’s a national infrastructure like roads and electricity. Suddenly the FCC can’t do any of that, and they have been forced into a corner.

So what we’re seeing is, the result of yesterday’s court decision makes it so that three things could happen. Number one, the Supreme Court could overrule the federal court, but it’s highly doubtful, and the Supreme Court has said, “FCC, you have the choices here. You make a move.” Number two, Congress could specifically say, “FCC, you have authority over the internet,” but that would take sixty votes — and have you looked at how difficult it is to get sixty votes in the Congress lately? The third and most likely and easiest option is the Federal Communications Commission chairman Julius Genachowski could simply take internet policy that was moved out of a more strict regulatory bucket, if you will, back in 2002, and put it back into a more — a tougher regulatory bucket now. And that would solve most of these problems, and it would make the cable and phone companies, like Comcast and AT&T, very angry.

So the challenge that we have in front of us, we have an FCC chairman who says all the right things, but he has a history, albeit a short one, of not necessarily always wanting to step up and confront the cable and phone companies, which are the largest lobbyists in Washington other than the pharmaceutical industry. So he needs to make that move. Everyone agrees that that’s what needs to happen. The question is, will he do it?

AMY GOODMAN: Josh Silver, what is Free Press going to do right now?

JOSH SILVER: So there’s a few things here. First of all, I’ll back up. Before I tell you what Free Press is going to do, I’m going to talk about the enormity of these issues in total. And that is, people have to remember, all media — television, radio, phone service — every type of media other than the printed page, will soon be delivered by a broadband or internet connection. That means these wonky sort of arcane rules that are being played out at the Federal Communications Commission and in the court ruling yesterday, these will shape the media for generations, what it looks like, whether independent voices like Democracy Now! can get into the suite of options that people have across the country when they turn on a television. It will determine whether we can bridge the digital divide that currently has the United States slipping from fourth in the year 2000 to twenty-second in broadband adoption and speed and affordability. It will really determine whether or not we will have a twenty-first century internet economy or whether we’ll continue to lag behind the rest of the world.

There’s a few things happening. Number one, people are going in droves — almost two million people have gone to savetheinternet.com and added their voice. People need to do that. And there needs to be an extra focus now on the proposed merger between Comcast and NBC. Keep in mind, Comcast is moving towards acquiring NBC, which is a major television network. Comcast is already the largest internet provider in the United States. They are the largest cable company. And yesterday’s decision shows that their power is not in check and that this merger would be disastrous. It would drive up cost. It would take free content, like hulu.com, likely put it behind a pay wall and make it cost money. And it would mean less choices and less independent voices in the media across the board. So that’s what’s at stake. And people need to get engaged and take action.

AMY GOODMAN: Josh Silver, I want to thank you for being with us, executive director and co-founder of freepress.net, a media reform group, speaking to us from Washington, DC.

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