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2nd Circuit strikes down FCC Open Internet Order, independent online radio hangs in the balance

Today the 2nd Circuit Court of Appeals struck down the FCC’s ability to regulate discrimination of data by internet service providers. Not unexpectedly, the Court says that the FCC itself set the stage in 2005. That’s when the Commission, led by Republican Kevin Martin, reclassified internet service as an “information service” rather than a “telecommunication service,” thereby reducing the agency’s power in this arena and freeing ISPs from the kind of universal service requirements that telephone service is subject to.

If there’s a silver lining in this decision, it’s that one solution is pretty clear: the Commission could reclassify internet services as telecommunications services again. That’s certainly something internet freedom advocates would like to see happen. Media democracy group Free Press has already set up a page to help people contact the FCC and ask Commission leadership to “Use your authority to establish a solid legal footing for the vital policies and protections this court decision threatens.”

In a statement FCC Chairman Tom Wheeler noted that the Court held that the Commission “may ‘promulgate rules governing broadband providers’ treatment of Internet traffic.’” As for next steps, Wheeler was less specific. “We will consider all available options,” he said, “including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.”

The principles of an open internet serve to protect services and platforms of all kinds that are offered over the ’net, including radio. As big players like Apple, Google, Clear Channel and NBC/Universal step up their online radio and music offerings, community, public, college and independent stations have cause for concern that their streams may be limited in favor of bigger players that can pay for preferential access to home and mobile listeners.

This issue of equal access matters for many aspects of democratized communication. “Latinos and other people of color have long faced discrimination at the hands of mainstream media,” said Jessica Gonzalez, the executive vice president for the National Hispanic Media Coalition. “Over the open Internet, we have been able to push back against this discrimination, tell our own stories fairly and accurately, and even earn a living. Today’s court decision jeopardizes this Internet freedom. It is up to Chairman Wheeler and the FCC to assert its authority to preserve Internet equality.”

Casey Rae, Interim Executive Director of the Future of Music Coalition, said, “It has never been more important to have basic rules of the road preventing ISPs from blocking content delivered over the Internet, regardless of how users connect. Thousands of musicians and independent labels are already on record in support of a level online playing field as part of FMC’s Rock the Net campaign. This decision will surely inspire countless other creators and entrepreneurs to make the case for an open and accessible Internet.”

Especially in light of today’s court decision, eyes and ears will be on tomorrow’s House Energy and Commerce Committee hearing on rewriting the Telecommunications Act, which features four former FCC Chairs. However, the architect of the fateful “information services” switch, Kevin Martin, is not scheduled to appear.

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