The end of the Federal Communications Commission's net neutrality policy might give telehealth and mobile app developers an edge in the suddenly-wide-open race to grab available wireless spectrum.

Then again, it might not.

While the D.C. Circuit Court of Appeals' recent ruling that broadband providers don’t have to treat all Internet traffic equally won’t mean the “end of the Internet,” as some fear, the ruling could shape mHealth strategies and the government’s regulatory approach for years to come.

With consumers using more and more Internet each year, straining the wireless spectrum, more of it will be needed, and an increasing number of players in the wireless ecosystem may have to pay more. That may not be a bad thing, some analysts argue, if it means technology companies can bring consumers faster speeds for certain services, such as telemedicine. 

The long trail of litigation, led by Verizon and others, ended recently when a three-judge panel on the court struck down the FCC’s 2010 Open Internet Order, which set no-blocking and non-discrimination rules on consumer access to content and websites for Internet service providers, while permitting mobile carriers to place some limitations on apps and services.

The court ended the net neutrality rules on the grounds that they wrongfully applied “common carrier” obligations to broadband providers as if they were telecom providers without actually categorizing broadband as a telecom service, like landlines.

The net neutrality policy follows mostly the same fate of the FCC’s attempt to stop ISPs from blocking peer-to-peer software. The same appeals court ruled in 2010 that the FCC didn’t have the authority to enforce a 2008 order regulating network management under the 1934 Communications Act.

The court was eyeing the FCC’s net neutrality non-discrimination provision as “an illegal imposition of common carriage because it doesn’t leave room for reasonable negotiations between ISPs and content and app developers,” said Berin Szoka, a communications attorney and president of the think tank TechFreedom.

While Apple has famously tried to restrict wireless access to some of its phones, increasing demand for wireless connectivity – the idea of Internet everywhere – may spur both more competition and collaboration.

Google is piloting its own ISP, Google Fiber, in Austin, Kansas City and Provo, Utah, claiming a connection 100 times faster than current average broadband speeds. Sprint is planning to double the wireless broadband speed on its 4G-LTE in its network across the United States by the end of 2014.

The availability of faster broadband speeds promises to make downloading and using mHealth applications easier, a particularly important point in light of the ongoing criticism that barriers stand between their recognized promise and ubiquitous use by providers and patients.

David Carter, an associate with the Washington, D.C.-based law firm of Arent Fox, says the impact on mHealth is still undetermined.

"In the long term, the impact of the court’s decision is far from clear," Carter wrote to mHealth News.  "In a statement, the FCC’s chairman has left open the possibility that it may appeal the decision to the Supreme Court or attempt to adopt similar requirements in a way that will satisfy the D.C. Circuit’s legal concerns. If it were to adopt new requirements, perhaps the FCC would decide that there is no longer a reason to distinguish between wired and wireless Internet providers and no longer exclude wireless service providers from the 'anti-discrimination' requirement that currently applies only to wired Internet providers. The increasing reliance on mobile devices to access the web, and to provide important healthcare applications, could well justify a change in Commission policy.

"If, however, the FCC neither appeals nor adopts new rules, thus leaving Internet service providers without any enforceable rules, mHealth entrepreneurs may find themselves in a delicate position in the coming years," Carter continued. "Several Internet service providers have made or plan to make investments in mHealth companies or formed strategic partnerships in the space. These companies will naturally look to increase their market share as more and more health and wellness devices become 'unplugged.'  The market conditions may create economic incentives to block competitors ability to reach their customers or, at the very least, to make the customer experience for those competitors less enjoyable. On the other hand, mHealth entrepreneurs could confront increased costs if Internet service providers install toll booths on the information superhighway and make content and service providers pay to reach their customers." 

As new FCC Chairman Tom Wheeler starts a five-year term the FCC is starting a “reverse auction” of the 600 MHz spectrum devoted to mobile in 2014, with a plan to incentivize broadcasters to voluntarily turn over airwaves and then auctioning those to wireless carriers.

Wheeler is on board with a proposal to let telecom providers phase out landline telephones for customers in certain areas, including parts of the East Coast damaged by Hurricane Sandy in 2012, which will inevitably drive more mobile phone sales in the region, and perhaps more mHealth apps as well.

The D.C. Circuit Court of Appeals also gave the FCC another regulatory option — reclassifying broadband as a telecom service. Even without such reclassification, the FCC “could require that any deals between broadband and content providers be reasonable and non-discriminatory,” Szoka said.

Those are among other options that the FCC is mulling in an effort to maintain “networks as engines for economic growth, test beds for innovative services and products, and channels for all forms of speech,” Wheeler said in a media release.

“We will consider all available options, 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,” said the former director at Core Capital Partners who had not taken a position on the FCC’s net neutrality policy.

Meanwhile, broadband providers are telling consumers not to panic.

“One thing is for sure: Today’s decision will not change consumers’ ability to access and use the Internet as they do now,” Verizon public policy VP Randal Milch said in a statement. “The court’s decision will allow more room for innovation, and consumers will have more choices to determine for themselves how they access and experience the Internet.”

Added Arent Fox's Carter: "In short, mhealth entrepreneurs, like other companies that rely on the Internet to provide their services, should be paying attention to this important policy debate.  For the moment, this issue appears to be anything but settled."