Tim Wu Discusses the Recent Net Neutrality Ruling

By TAP Staff Blogger

Posted on January 17, 2014


Earlier this week, the U.S. Court of Appeals for the D.C. Circuit struck down a provision of the Federal Communications Commission's (FCC) "Open Internet Rules" which allowed the FCC to regulate Internet service providers. Basically, these rules prohibit Internet providers from blocking or prioritizing Web traffic. The rules were established to ensure network neutrality for all users.

In the case that was brought by Verizon against the FCC, Verizon argued that the FCC had no right to make those rules in the first place. Broadband is currently classified by the FCC as an information service. If Internet providers had been classified instead as common carriers, the FCC's Open Internet Rules would likely stand.

Columbia University law professor Tim Wu coined the phrase, ‘net neutrality’ in his paper, “Network Neutrality, Broadband Discrimination.” Written in 2002, this paper argued that a discrimination rule was the best way to protect a neutral network. Additionally, Professor Wu emphasized that network neutrality is an important goal because a network that treats all applications alike end-to-end promotes innovation. At some point after the release of this paper, the term network neutrality came into common usage.

Professor Wu recently spoke with The Washington Post about the ruling and its effect on Internet access, and about what the FCC should do next. A few excerpts from “‘A FEMA-Level Fail’: the Law Professor Who Coined ‘Net Neutrality’ Lashes Out at the FCC’s Legal Strategy” follow.

What Does the Court of Appeals Ruling Mean for Consumers?

It leaves the Internet in completely uncharted territory. There's never been a situation where providers can block whatever they want. For example, it means AT&T can block people from reaching T-Mobile's customer service site if it wanted. They can do whatever they want.

The FCC’s Legal Strategy

This was a huge legal error on the FCC's part. The FCC's legal strategy put it in the position of arguing that its rules are not common carrier rules when the two components of the regulation — anti-blocking and anti-discrimination — have been at the center of common carrier regulation since medieval times, around 1450.

They blew it on the legal strategy. It's a big fail. It's like, FEMA-level fail. Every legal expert told the FCC they're going to lose this case, and they did. … Think of it this way: The FCC is like a battleship, and it has these enormous guns. But it decided to use a water pistol for this particular issue.

Was there Any Good News in the Ruling?

They [the court of appeals] gave the FCC a partial victory in terms of its authority. But it's very weak. It means they have the power to implement things like transparency rules. It means they can force the broadband companies to tell you, for instance, who they're blocking or what speed their networks are running at. But that's all they have.

Read the full article: “‘A FEMA-Level Fail’: the Law Professor Who Coined ‘Net Neutrality’ Lashes Out at the FCC’s Legal Strategy.”

Tim Wu is the Isidor and Seville Sulzbacher Professor of Law at Columbia University. His best known work is the development of net neutrality theory, but he has written widely about private power, free speech, copyright and antitrust. Professor Wu’s fields of interest are the Internet, media & communications industries, and international trade. Professor Wu served as Senior Advisor with the Federal Trade Commission from 2011-2012.