The ink had barely dried on the federal appeals court decision to strike down the Federal Communication Commission's Net Neutrality rules Tuesday before the cable industry began issuing carefully worded responses backing an Open Internet, if not the FCC's rules to enforce it. (See Net Neutrality Fight Not Over.)
In a prepared statement, the National Cable & Telecommunications Association (NCTA) mostly shrugged off the court decision itself. Instead, the group expressed its firm commitment to the Open Internet and support for the Federal Communications Commission (FCC) 's hands-off approach to web regulation so far.
“The cable industry has always embraced the principles of an open Internet and the Court decision will not change that," NCTA President & CEO Michael Powell said. "While we fully expect some to rush to judgment about the fate of the open Internet, we should remember neither the adoption of the Open Internet Order, nor its partial repeal, has led or will lead to significant changes in how ISPs manage their networks.”
Further, Powell said, “the cable industry has always made it clear that it does not -- and will not -- block our customer’s ability to access lawful Internet content, applications or services. We look forward to working with Chairman Wheeler and the FCC on ensuring that American consumers will continue to enjoy a fast, robust and open Internet experience.”
Similarly, Time Warner Cable Inc. (NYSE: TWC) re-affirmed its commitment to the Open Internet and support for the FCC's laissez-faire approach up till now. “Since pioneering the development of high-speed broadband service in the late 1990s, Time Warner Cable has been committed to providing its customers the best service possible, including unfettered access to the web content and services of their choice," the company said in its own prepared statement. "This commitment, which long precedes the FCC rules, will not be affected by today’s court decision.”
Likewise, American Cable Association (ACA) chimed in with its support for the Open Internet despite its opposition to the now-struck down Net Neutrality rules.
“ACA members believe that customers should be able to access the lawful content they wish on the Internet irrespective of who provides their Internet access service," ACA President & CEO Matthew Polka said in another prepared statement. "ACA has long held that adopting Open Internet rules was unnecessary because its members had been operating and would continue to operate in conformity with the FCC’s 2005 Open Internet principles. That remains true today regardless of the court’s decision.”
Although the appeals court unanimously decided that the FCC does not have the authority to ban broadband providers from blocking or discriminating against certain types of Internet traffic, it said the FCC could regulate such behavior if broadband providers were re-classified as common carriers. Up to now, the Commission has determined that ISPs are not common carriers and therefore not subject to such rules.
On the face of it, the appeals court ruling is a good one for cable companies. It means that the FCC cannot stop them from blocking or discriminating against popular web content providers like Netflix Inc. (Nasdaq: NFLX) that flood their networks with video traffic. However, the reality is far more complicated.
For one thing, the battle is far from over. The FCC still has room to create Internet protections outside of the specific parameters on which the court ruled.
For another, service providers have to be very careful about the arguments they make, given the potential anti-trust issues associated with prioritizing their own IP video content over a competitor's. Cable companies must show that they are fighting for an open Internet – as indeed their public statements so far indicate – because they have control over both broadband delivery pipes and the content that gets delivered over those pipes.
If the appeals court has walked a fine line with its decision, it's not the only one trying not to stray too far to one side or the other of the net neutrality debate. The cable industry also has a delicate balance to strike.
— Mari Silbey, special to Light Reading.