Ten years ago, the Federal Communications Commission wandered off the reservation and away from 100 years of communications history, labeling high-speed Internet access services as "unregulated." Theoretically, competition would take the place of any regulation.
So, even though high-speed Internet access is the modern- day equivalent of the telephone - basic to everything we do in life - providers have been treated not as "common carriers" but as private businesses.
Now the U.S. Court of Appeals for the District of Columbia has logically decided that the FCC can't deregulate the Internet with one hand and, with the other, require that service providers treat all traffic equally.
To preserve net neutrality - and to ensure that high-speed Internet access is recognized as essential to the national economy, as well as to our civic, social and personal well-being - the FCC must change the label. Internet service providers are common carriers, and as such they need government oversight and regulation.
The court's opinion is about much more than net neutrality. In finding that the FCC must be held to its decision to exempt Comcast, Time Warner Cable, AT&T and Verizon Communications from common carriage obligations, the court says the commission can't require these giants to connect to any other networks, treat new businesses the same as old ones, carry the speech of Americans without altering it, or otherwise refrain from imposing their profit-driven interests.
In the Internet access business, competition cannot replace regulation, because real competition doesn't exist. At the moment the court's ruling came down, I was in my living room in Cambridge, Mass., talking to my friendly Comcast installer. He told me that our mayor had signed an exclusive agreement with Comcast so that no competitors would be allowed in town.
The man may have been a little confused about the legal niceties of what's happened here, but he was dead on about the reality: My only choice for high-speed Internet access in Cambridge is Comcast. And the same is true for more than 77 percent of Americans: The local cable monopoly is the only seller of wired high-speed, high-capacity Internet access.
I asked whether Comcast would soon be installing fiber- optic service - the fastest kind. Nope, he said. Too expensive. Yet in Stockholm, a city I had just visited, 100 percent of the businesses and 90 percent of the homes have fiber optics. In New York, where I also live, I pay four times as much as someone in Stockholm does for service that is an 18th as fast.
The U.S. is sinking in international rankings on fiber- optic penetration, and it now stands in 14th place, according to the Organization for Economic Cooperation and Development. We've got the most innovative people in the world, working in an increasingly information-based economy, yet our Internet service providers are subject to neither competition nor oversight.
The FCC should use the legal authority it possesses to relabel these services as regulated ones. Our future depends on it.
Susan Crawford, the John A. Reilly Visiting Professor in Intellectual Property at Harvard Law School and a fellow at the Roosevelt Institute, is the author of "Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age."