Broadband Internet access may be the equivalent of basic telephone service for most Americans in the 21st Century, but the FCC has yet to exercise its authority under the Telecommunications Act of 1996 to approach Internet connections as a basic utility of modern life.

This week, the U.S. Court of Appeals vacated the blocking and discrimination prohibitions of the FCC’s 2010 Open Internet order because in that proceeding the Commission failed to employ and rely on its clear authority over telecommunications found in Title II of the Act.

In its opinion, the Court squarely identifies the classification of Internet access by an earlier FCC more than 10 years ago -- as an unregulated “information service” -- as the reason the Open Internet rule fails.   It is quite unsurprising for the Court to insist that common carrier style nondiscrimination rules cannot be imposed with Internet access providers still classified that same way.  

The earlier thinking was that if cable or telecom Internet access providers offer their own unregulated information services such as email and video programming, the bundled packages should not be regulated as telecommunications.  And besides, there would be enough competition among providers to protect consumers.   However, even with all the new technologies developed over the last decade, nobody has found a way to access information services like AOL, Yahoo!, Google, ebay, Facebook, Amazon, Netflix, Twitter or Pandora without a physical telecommunications connection, be it wired or wireless.

Connectivity is key to absolutely everything in the Internet ecosystem.

That includes both end user access and interconnection of networks.   Where competition is truly robust, the FCC keeps regulation to a bare minimum.   Where choices are few and market failure occurs, end users will look to the FCC for some basic protections that are only possible if the agency restores its own dormant statutory authority over access to critical underlying telecommunications networks.  

Otherwise Internet access providers will be free to block and discriminate at will, prioritizing only those information services that are both willing and able to pay for special connectivity.

The Court decision actually comprehends the relevant context quite well.   It even references “the long history of subjecting to common carrier regulation the entities that controlled the last-mile facilities over which end users accessed the Internet.” 

Indeed, without such a framework allowing “innovation without permission” from network operators, it is unlikely many of the popular information services listed above would have ever really launched.   Aside from commercial applications, reliable affordable Internet access is now essential to education, health care, public safety and civic engagement.  

This week’s court decision presents an open invitation to the FCC to clarify the importance of telecommunications networks to future economic growth and opportunity for all Americans.

Sloan is vice president of Government Relations at the Computer & Communications Industry Association.