Netflix released a statement applauding a federal court’s 2-to-1 decision today upholding “net neutrality” regulations proposed by FCC chairman Tom Wheeler. According to the streaming giant, the decision “settled two decades of debate and legal uncertainty by ensuring the Internet remains open to all” and “ensuring that providers like Netflix will be able to reach consumers without ISP interference.”
But, for Netflix and other OTT providers, it may end up being a case of be careful what you wish for in the long haul.
Wheeler’s two previous attempts to push through net neutrality regulations were rejected by the courts. In this third, so far successful try, the FCC sought to classify high-speed internet as a telecommunications service under Title 2 of the Federal Communications Act, giving the agency broad oversight over its operation, as well as the content it carries.
“One of the rules that they added at the last minute was something they called the General Conduct Rule that says any behavior or practice that the FCC finds is potentially harmful to consumers, they can sort of retroactively ban it,” say Larry Downes, project director at the Center for Business and Public Policy at Georgetown University’s McDonough School of Business.
If you think that sounds like it has the potential to put a chill on free speech, you’re not alone. But in the court’s majority opinion, the judges rejected the opposition’s arguments that the rule violated the First Amendment.
Defenders might argue that the FCC only intends to use the new powers to stop the telcos from throttling or blocking service providers or forcing them to pay for prioritization, but Downes said, “there’s really no limit to how that rule could apply and there’s no limit to who that rule could be applied to.”
“It’s not the FCC whose intent it is to not apply it to anyone but the telcos,” he added, “it’s really just Chairman Wheeler, who will not be chairman six months from now, no matter what happens in the next election.”
Contrary to Netflix’s statement, the issue is far from settled, as AT&T, which opposes the new rules, pointed out.
“We have always expected this issue to be decided by the Supreme Court, and we look forward to participating in that appeal,” said David McAtee, SVP and general counsel for AT&T, in a statement.