Jeff Gelles: Open Internet is at risk

Let's pause for a moment to remember the Internet as we know it. That Internet could soon be gone - in favor of something more like cable TV - if Verizon and MetroPCS Communications get their way in a fight with the Federal Communications Commission.

If that sounds a touch alarmist, the two network owners are making some alarming claims in a dispute they have taken to the U.S. Circuit Court of Appeals - above all that, as network owners, they have a First Amendment right to exercise "editorial discretion" over their portions of the Internet, much like a newspaper.

Yes, you read that right - and if you're reading this column online, perhaps you should be thankful that you can see it at all. It's not clear how network owners might exert the kind of control these companies claim - chances are they'd be more likely to use it to squeeze extra money from websites such as Netflix that compete with their core businesses.

But the ability to block websites displaying opinions they dislike is just one of the possibilities if the courts buy what four former FCC commissioners, in a friend-of-the court  brief, call the companies' "startling constitutional arguments."

"If Verizon says it wants the right to control what's transmitted, then at some time and in some place they intend to do this," one of those ex-commissioners, Reed Hundt, told me last week. "When people say that they shouldn't be stopped from doing certain things, it's because they want the potential to do them."

Hundt, chairman of the FCC from 1993 to 1997, puts it bluntly. If Verizon and MetroPCS were to succeed, he says, "there wouldn't be an Internet as we know it."

Verizon and MetroPCS are challenging the FCC's "Preserving the Open Internet" order, crafted in 2010 after an earlier FCC attempt to limit network owners' power was rejected by the same Washington appeals court weighing this challenge.

Is there a checkered history here? Absolutely. Lawmakers, regulators, companies, and activists have argued for years over the best way to simultaneously protect consumers and the Internet's value as an engine of economic growth and cultural change.

Nobody wants to mess with success. Well, almost nobody, which gets us back to Verizon and MetroPCS's appeal in a case that helps crystallize what's at stake in the long, confusing fight over the "open Internet" or "network neutrality."

You've probably heard, for instance, the repeated charge that net-neutrality legislation is a plan to "regulate the Internet." It's safe to say that such spin is a major reason Verizon can trumpet that at least 11 net-neutrality bills have been offered in Congress since 2006 and none were enacted.

But the allegation has always been misleading. As part of our telecommunications system, the Internet has always been governed by regulation - albeit more lightly thanks to the bipartisan push, starting with 1996's Telecommunications Act, to loosen the reins in hopes of spurring growth, investment, and innovation in the high-speed version that came to be known as broadband.

Today, we can look back to 16 years of extraordinary innovation and billions of dollars in investments, including by network owners such as Verizon. But Verizon's appeal is crucial because of one of the 1996 law's unmet promises: that it would spur vigorous competition among new providers.

Despite recent signs of progress, such as Google's fiber network in Kansas City and Chattanooga's experiment with municipal fiber, most consumers still have little or no broadband choice. In Philadelphia and elsewhere, the incumbent cable and phone companies are typically the only games in town.

The saving grace has been the Internet's open architecture, which the FCC's 2010 order seeks to preserve. On the Internet, any user who pays for access can visit any site. And website owners - who pay for their own bandwidth to support today's increasingly data-intensive services - can reach them without anybody's interference.

Network owners such as Verizon, AT&T, and Comcast have repeatedly pushed for the ability to impose "two-sided" pricing models - for instance, to charge extra to companies such as Netflix, which sells video directly to 21 million consumers via the Web as an alternative to cable TV.

They have largely been stopped by the FCC's net-neutrality standards. The 2010 version prohibits "unreasonable discrimination" by wired-broadband providers, and generally bars wired and wireless providers from blocking content, applications, or services, including those that compete with their own core businesses.

Hundt says Verizon's First Amendment argument is an end-run around the neutrality rules, and likely was inspired by recent rulings, such as Citizens United, holding that corporations are entitled to the same constitutional protections as individuals.

Hundt's group isn't alone in fighting back. Leading tech experts, venture capitalists, and Silicon Valley titans have also weighed in against what they see as a power grab that tries to blur the distinction between being a newspaper owner, responsible and liable for everything it publishes, and a network owner.

Verizon may have the capacity to peek inside my e-mail or read your blog. But the data in those digital packets belongs to us, not to the network owner that transmits them. Let's hope the courts don't buy into such a fundamental mistake.