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If you feel this image is in violation of our Terms of Service, please use the following form to have it manually reviewed by a staff member. Because with the recent ruling, cable and phone companies like Verizon and AT&T now have the legal right to block any website, webpage, blog, video, web technology, app, cloud sync technology, or anything else running online through their pipes. Even though we predicted this decision here in WIRED, it turns out that the real problem isn’t the court’s decision — but the FCC’s response to it.
Rather than taking the difficult (political) journey to protect internet freedom, the FCC is issuing deluded statements that no journey is necessary. In this case, FCC Chairman Tom Wheeler is Frodo and Mount Doom is a legal move called “reclassification,” which is the only way to win net neutrality in the courts.
Now, the Open Internet principles were not legal rules adopted by the FCC; they were effectively a press statement posted on the FCC website.
Marvin Ammori is a Future Tense Fellow at the New America Foundation and a lawyer who represents technology companies on internet policy issues. It’s not as if the FCC didn’t know this was required for net neutrality; its leadership just didn’t have the backbone to actually do it.
Today, we know the same two things we knew years ago: The FCC can’t enforce press-statement principles without adopting official rules, and those rules must be based on the legal theory of reclassification. It looks like the FCC Chairman’s blog has either been hacked or he believes we live in a Groundhog Day time-warp back to 2006 where he can enforce principles in a press statement on jurisdictional theories that have already been emphatically rejected in court. It’d be like Frodo fooling himself and others, claiming he had already destroyed the ring, or that Middle Earth’s inhabitants already had all the power they needed to defeat Sauron, rather than undertaking the difficult journey to Mount Doom. The internet is now, and will likely remain for some time, a free-fire zone for AT&T, Verizon, and others to block blogs, superimpose any content (including ads) over the existing content on any webpage, cut deals making Bing or Google the “exclusive” search provider in our homes, and much more. The loss this week comes after our fighting a decade-long war (9 or 12 years, actually, depending on if you count it from 2001 or 2005).


Disclosures: The author advised technology companies that opposed SOPA and has represented consumer groups and some companies supporting network neutrality.
This work is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 Unported License. Put another way, Comcast or Time Warner Cable can now block Netflix, BitTorrent, or even this article. It’d be like Frodo saying he’s going to save Middle Earth — except without carrying the ring to Mount Doom, the only place it can be destroyed. In 2007, when I was a lawyer for the public interest group Free Press, I helped draft the complaint to the FCC against Comcast for secretly blocking BitTorrent and other technologies. But we filed that complaint because the FCC’s leadership had publicly and repeatedly promised that if anyone violated the principles, the FCC would have the power — and will — to stop it. It found that Comcast violated the FCC’s principles and that a certain part of the Communications Act, the first part known as Title I, gave the FCC the jurisdiction to act. He is also the cofounder of a startup, Wearab.ly, which enables content to be distributed to wearable devices.
This bucket is Title II of the Communications Act, a legal category that has forbidden blocking of phone calls and discriminating amongst users for a century. Instead, then-FCC Chairman Julius Genachowski made a deal with AT&T and came up with a new and different theory that everyone expected to fail in court.
So, if the current FCC Chairman Tom Wheeler wanted to actually fight for network neutrality, he would simply call for new rules, not principles, and do so under Title II, not another theory. But throughout these battles, millions of individuals and thousands of small businesses, consumer groups, and large businesses have fought for network neutrality.
They can choose to provide better service to some entities and not others, letting some websites load very, very slowly and others load instantly (for a fee!).


My theory was simple: the FCC had issued a set of Open Internet principles in 2005 and by blocking legal technologies like BitTorrent, Comcast was violating those principles. We took the FCC at its word and filed a complaint based on their stated Open Internet principles.
Then the case went to court, and in January 2010 — three years ago this week actually — I argued the case, alongside the FCC’s top lawyer, before the appellate court. A graduate of Harvard Law School, Ammori serves on the boards of Demand Progress, Fight for the Future, and Engine Advocacy. Fast Company named him one of the 100 Most Creative People in Business in 2012 for being Silicon Valley’s “go-to First Amendment guy” and one of the leaders of the campaign against SOPA and PIPA. A “process” loss meant that the FCC needed rules before enforcing them, and a press statement like the Open Internet principles wouldn’t do. By “classifying” the carriers as subject to Title II for internet access, the FCC would then have clear jurisdiction to stop blocking and nondiscrimination — instead of merely requiring cable and phone companies to disclose when they are doing so. The FCC has the power to do this.
Top consumer groups and leading law professors, including Tim Wu, Susan Crawford, and Barbara van Schewick have called for reclassification as the only way forward. The court found that the new theory could not be the basis for a rule forbidding blocking or discrimination of a service outside of Title II. I, in turn, asked for a decision on jurisdiction: Because the FCC by then had already started the process of adopting rules, and what we really needed to know was whether the FCC even had the authority under Title I to adopt those rules at all. It didn’t even bother discussing the process arguments that had completely failed to persuade them.



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