I was less depressed than I would have expected about yesterday’s ruling that the FCC does not have the authority to tell Comcast to let us do what we want with our Internet. In part, that’s because I was expecting to lose. In part it’s because this battle is far, far from over. There’s the possibility of an appeal (although the 3:0 decision seems pretty definite), Congressional action, or reclassifying the Internet. The third is the most interesting, although it has its own risks.
I am not a lawyer and I do not understand these things well, but this ruling could spur the FCC to make a simple change in how it classifies the Internet — it’s all about the classifications, people! — which would truly change the game.
So, pardon me (or better, correct me) as I get this wrong, but it all comes down to the various classifications that began with the 1934 Communications Act and were amended in the 1996 Telecommunications Act. The 1996 Act institutes a difference between “information services” (like the Net at the time) and “telecommunication services” like the telephone system. Information services include “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications,” i.e. the Internet. Telecommunication services transmit “information, without a change in its form or content,” i.e., the telephone system. Telecommunication services are considered “common carriers,” and are classified under Title II. Common carriers are not allowed to unjustly or unreasonably discriminate in their services, which is why you can use George Carlin’s seven dirty words in any !@$#%-ing telephone call you want. (I found David Johnson’s post on this helpful, but don’t blame him for my misunderstandings. Stephen Schultze also does an excellent and thorough job on these topics in a Radio Berkman podcast — highly recommended. Also, see Susan Crawford‘s concise explanation of yesterday’s decision.)
In 2002, the Bush FCC decided that if you get Internet access via a cable company, those services should not count as coming under Title II; cable companies are information providers, not telecommunication companies. The courts agreed in the 2005 Brand X decision, which meant the cable companies no longer had to provide wholesale access to ISPs the way telephone companies did under the obligation of common carriers to provide access to all without discrimination. That’s why around that time your choice as a user went from lots of small, competitive ISPs to one or two Big Name cable ISPs.
These classifications are troublesome — everything is miscellaneous, people! — because the Net is eating the other communications media; the Net now carries a good percentage of telecommunications traffic and doesn’t always run via the sorts of telecommunications the Congress envisioned in 1996. So, assuming that the FCC wants to regulate the Internet — and “regulate” here means to keep it free of the de facto regulation by those who provide access to it — it could reclassify broadband as the transmission of information (telecommunications, Title II) rather than as an information service that transforms information. This would make broadband a type of common carrier, preventing providers from discriminating against content they don’t like or discriminate in favor of their own content. There is, of course, dispute about whether the FCC has the authority to reclassify it this way (putting it under Title I, AKA “ancillary powers”), so “the FCC could” actually means “the FCC could and face legal challenges.”
Erik Cecil is among those who have posted very interesting comments on these issues. Erik maintains that, despite the pundits, it would be easy for FCC to reclassify broadband services under Title II as a type of telecommunications. He says the FCC already has a set of regulations about broadband (including requiring wiretapability under CALEA, and 911 VOIP access), and thus is already treating it as a Title II telecommunications service that moves bits without changing them. Public Knowledge, which has been active in pushing for Net Neutrality, also has posted about this.
My own, uninformed point of view? Classification for its own sake is a mug’s game, especially when we’re using categories such as “common carriage” that go back to the age of railroads. So, I don’t much care how broadband services are classified except insofar as it gets us to the social end that I want: maximal access to a maximally open and non-discriminatory Internet.
CEO of Verizon, Ivan Seidenberg, says “we will throttle”:
… the very, very high users, the ones who camp on the network all day long every day doing things that — who knows what they’re doing — those are the —
MURRAY: It’s video, right? I mean, it’s video.
SEIDENBERG: But those are the people we will throttle and we will find them and we will charge them something else.
Anyone want to print up some “Internet Camper” t-shirts