The decision rests, in large part, on the idea that Americans have a meaningful degree of choice in their provider of high-speed Internet – which is simply untrue in most cases. Somewhat bizarrely, the court cites the availability of Google Fiber, which is currently available to fewer than 250,000 households in the Kansas City area, as evidence of the industry’s competitive health.
The reality is that most Americans have next to no choice for high-speed Internet service. Susan Crawford, a visiting professor at Harvard Law School, said in a recent interview with NPR that “for at least 77 percent of the country, your only choice for a high-capacity, high-speed Internet connection is your local cable monopoly.”
The FCC’s Net Neutrality rules didn’t seriously threaten the anti-competitive legal protections enjoyed by the cable companies – they were simply meant to ensure that legitimate content couldn’t be throttled or blocked, in the interest of preventing the ISPs from favoring specific services. For instance, an ISP couldn’t block Netflix because they had signed a commercial agreement with a competitor like Hulu.
Moreover, the court’s ruling is based on legal technicality (though, to be fair, the FCC’s wording didn’t help) and argues – presumably with a straight face – that ISPs are “not telecommunications carriers at all,” and are therefore exempt from the common carrier laws under which the FCC attempted to enact net neutrality. Presumably, this will open the door for Intel to argue that it’s not a semiconductor manufacturer, and for the MGM Grand to argue that it’s not a casino.
So, now that the Comcasts and Time-Warners of the world have even less incentive to make their services competitive on either price or performance terms, the fracturing of the Internet can begin in earnest – unhindered by rivals or regulations, the ISPs can create entire ecosystems of their own. One video streaming service, one search provider, one news site. And if you wanted something else, well, too bad.
This isn’t to say that such a hyper-privatized Internet is just around the corner – only that the cable industry’s tooth-and-nail opposition to even the gentlest oversight is bad for consumers and, ultimately, damaging to American competitiveness in the world economy. It’s been noted many times that our national broadband infrastructure is substantially underpowered for a country of our size – and absent any meaningful oversight or competition, why would the carriers devote any resources to improving matters?