The provision, often associated to the concept of net neutrality, was struck down in a decision on the case Verizon vs. FCC, which was filed in 2010. A panel of three D.C. district judges denied the FCC’s ability to require that service providers to treat all Internet traffic equitably. While this is a marked win for Internet Service Providers (ISPs) like Verizon, they will still be required to divulge information on how they enact that traffic management.
While the court said that it did not disagree with what the FCC was attempting to regulate, it was a problem with the way the rules were written which ultimately nullified them. Under the Open Internet Order, “common carriers” were denied the ability to police and regulate the information flowing through their infrastructures. However, years earlier, the commission had classified ISPs as information services, rather than common carriers.
"Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the commission from nonetheless regulating them as such," Judge David Tatel wrote for the court.
While proponents of the ruling say that competition amongst ISPs will give consumers more choice, advocates point to the distinct lack of competition as a huge problem with giving ISPs the ability to regulate what they allow to use their bandwidth.
Theoretically, removal of these rules could allow service providers to offer tiers of service, charging customers more to access sites and applications that take up more bandwidth, video streaming services in particular. With more consumers choosing to use video streaming services as an alternative to packaged cable TV service, concerns about ISPs bringing similar sales models to their Internet services abound.
Verizon has said in a statement following the decision that consumers would continue to be able to access the Internet as they always have been, and that it would allow Internet providers to push for innovation.
But, with provider competition in many areas around the country resigned to a choice between one or two providers or nothing, the decision is undoubtedly a win for big communication companies rather than it is for the consumers.
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