Broadband Discrimination, by any other name, would smell just as rotten

The FCC has its final open commission meeting of the year today—updated net neutrality rules will not be on the agenda as originally intended.

Photo by Joseph Gruber (Flickr)

The year will end in much the same way as it began for net neutrality: uncertainty.

When 2014 began, the legal protections supporting the concept of net neutrality were in doubt while the U.S. Court of Appeals for the D.C. Circuit considered a challenge to the Federal Communications Commission’s 2010 Open Internet rules.  The wait was not long, however, and the Court vacated the rules almost in their entirety.  The FCC did not appeal the ruling and, just a few short months later, FCC Chairman Tom Wheeler announced proposed rules that would allow for the Internet-equivalent of toll roads.  The comment period commenced, and the FCC received almost 4 million comments, including a website-crippling flood of anger after John Oliver used his late night HBO program to spur Internet “trolls” into action.

With the rulemaking advancing for the most part as scheduled, the FCC was expected to vote on a set of final Open Internet rules at its last open commission meeting of 2014.  But even the best-laid plans often go awry.

President Obama, seemingly with a renewed sense of purpose after the recent midterm elections, weighed in on the FCC’s upcoming “net neutrality” rules.  Back to the drawing board it was for Chairman Wheeler.

“All senders are recipients, all recipients are senders, and all IP addresses are equal.”

Net neutrality is the idea that all Internet traffic, no matter the source, is treated equally by Internet service providers (“ISPs”).  There are no Pintos or Ferraris on the roads of the Internet.  There are no slow lanes or fast lanes whisking some data along their way faster than others.  Surely there are no toll roads.  “[A]ll senders are recipients, all recipients are senders, and all IP addresses are equal,”  as David Post put it simply on the Volokh Conspiracy.

FCC authority to enforce net neutrality can derive generally from two sources.  The first, which the Commission had relied on in the past to support net neutrality rules, is known as Section 706 Authority.  Section 706 of the Telecommunications Act of 1996 provides for the regulation of broadband deployment within the United States and treats the Internet as an information service.  The D.C. Circuit, however, found Section 706 authority to be inadequate (pdf) to support most net neutrality rules because those rules were essentially common carrier rules.

This brings us to the second, and more politically charged, option of Title II common carrier classification.  Regulation of ISPs under Title II of the Telecommunications Act would treat the provision of broadband Internet service as a public utility; in other words, the Internet would be viewed as a necessity for daily life, just like electricity, water, and telephone service.

“The time has come for the FCC to recognize that broadband service is of the same importance and must carry the same obligations as so many of the other vital services do.”

In his public statement on net neutrality, President Obama recognized the modern importance of a connection to the Internet and voiced his support for Title II reclassification.

For almost a century, our law has recognized that companies who connect you to the world have special obligations not to exploit the monopoly they enjoy over access in and out of your home or business.  That is why a phone call from a customer of one phone company can reliably reach a customer of a different one, and why you will not be penalized solely for calling someone who is using another provider.  It is common sense that the same philosophy should guide any service that is based on the transmission of information — whether a phone call, or a packet of data.

The time has come for the FCC to recognize that broadband service is of the same importance and must carry the same obligations as so many of the other vital services do.  To do that, the FCC should reclassify consumer broadband service under Title II of the Telecommunications Act — while at the same time forbearing from rate regulation and other provisions less relevant to broadband services.  This is a basic acknowledgment of the services ISPs provide to American homes and businesses, and the straightforward obligations necessary to ensure the network works for everyone — not just one or two companies.

The result of Title II reclassification would be that ISPs become essentially dumb pipes existing solely to deliver and send your emails, stream your favorite movies on Netflix or the latest Beyoncé album on Spotify, broadcast pictures of your food on Instagram, and tweet your 140 character messages in the global conversation that is Twitter.  Is this not what serves as the general consumer expectation of the Internet already?  ISPs like Verizon, Comcast, and Time Warner Cable are not “The Internet.”  The Internet is made up of consumers and content creators across the world interacting through the ISPs’ “series of tubes.”

Reclassification would require a reversal of the FCC’s positions in the past that broadband Internet service is an information service rather than a telecommunications service.

It almost makes too much sense to reclassify under Title II.  Almost.  The Notice of Proposed Rulemaking announced in May 2014 once again stated a plan to rely on Section 706 Authority, while asking for comment on Title II reclassification.  Reclassification would require that the FCC reverse its positions in the past that broadband Internet service is an information service rather than a telecommunications service.  To do so, the FCC in its final rule would need to respond to the issues raised regarding reclassification during the rulemaking comment period and state the basis and purpose of its rule.  Moreover, the FCC will need to ensure that “any changes made in the final rule be of a type that could have been reasonably anticipated by the public – a logical outgrowth of the proposal.”  Otherwise an additional comment period will be necessary.

Of course, the FCC could also choose to open up another comment period now that President Obama has weighed in with a specific proposal on net neutrality.  Gathering additional comments may not be all that useful, however, considering the millions of comments already on the record.  Lest the FCC forget, time is potentially running out on issuing final rules and seeing those rules in practice before the political climate changes even more.  Title II reclassification would include more regulatory hoops to jump through—and Republican politicians with Presidential ambitions would like to convince anyone who will listen that this would be a disaster.

Quick political sound bites such as these show a fundamental failure to understand both the very principles upon which the Internet was originally built and the current monopolistic state of affairs within the broadband market.

“The law’s not hard. The politics are hard.”

Chairman Wheeler wants to “split the baby” and come up with hybrid rules that attempt to satisfy everyone in the room: consumers, content creators, and ISPs.  He views this approach as the most pragmatic choice and wants to ensure the final Open Internet rules will both include the principles of net neutrality and withstand the all-too-certain legal challenges to follow.  Verizon has communicated that it is ready to challenge the final rules in court if the rules include reclassification.  Congressional challenges to the FCC’s authority to reclassify under Title II are all but certain, especially when considering that ISPs already greatly outspend Internet firms (e.g., Google, Facebook, Amazon) in political donations.

The creator of the term “net neutrality” said it best about reclassification: “The law’s not hard.  The politics are hard.”

Note: Reclassifying under Title II is only the first step that President Obama called for in order to promote net neutrality.  The second step, known as forbearance, is necessary to prevent overregulation of broadband service and ensure fairness to ISPs when reclassifying broadband service under Title II.  Forbearance, as well as the balance between consumer protections and ISP business interests, will be discussed in a second part to this article.

Adam Steele, Editor-in-Chief Emeritus
About Adam Steele, Editor-in-Chief Emeritus (17 Articles)
Adam Steele served as Editor-in-Chief for the Campbell Law Observer during the 2013-2014 school year. Prior to law school, he attended N.C. State University, where he earned a B.A. in Political Science in 2006. He taught US History at a local high school for a short time before working as a paralegal at Millberg Gordon Stewart PLLC for three years prior to law school. Adam interned in all three branches of the state government, including with the Transportation Section of the N.C. DOJ, the Research Division of the N.C. General Assembly, and with the Honorable Paul C. Ridgeway, Resident Superior Court Judge in Raleigh. Adam spent the summer of 2013 clerking with the Honorable Sanford L. Steelman, Jr., N.C. Court of Appeals and Millberg Gordon Stewart PLLC. Adam spent the majority of his 3L year interning with Red Hat, Inc., and as a research assistant to Dean J. Rich Leonard. He graduated from Campbell Law School in May 2014.
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