As was widely reported and criticized earlier this week, the FCC is considering abandoning net neutrality and all other kinds of broadband initiatives instead of standing up to the big cable and phone companies and asserting authority.
The method of abandonment would work like this: In the face of a DC Circuit Court ruling that the FCC has no jurisdiction to protect net neutrality under its current regulatory structure where Internet services are classified as Title I "Information Services" instead of Title II "Communications Services," the FCC would press forward on net neutrality regulation, the national broadband plan to bring Internet services to more Americans, and similar popular and important initiatives. As you might imagine given the court ruling, these initiatives would be challenged by the telecom companies in the courts and, according to leading legal scholars who spoke with reporters today, would likely be struck down.
In other words, the FCC’s reaction to this court ruling would not be to fix the problem and reclassify broadband as a Title II "Communication Service" like foreign powers such as Canada and the EU do. Instead, they would perform the regulatory equivalent of sticking their fingers in their ears and screaming, "Nah, nah! We can’t hear you!" and press ahead anyway.
That plan is doomed to fail. As Marvin Ammori, telecommunications law professor at the University of Nebraska and advisor to Free Press explained:
If the FCC says we’ll go ahead on shaky legal ground and do net neutrality, if they don’t ground their jurisdictional power concretely [by reclassifying broadband as a Title II communications service] then they’re in fact abandoning net neutrality. They would be breaking Obama’s promise.
And this issue is about far more than net neutrality. A whole range of things in the broadband plan could be sacrificed without sufficient authority by the FCC. The only viable option is Title II. No other alternatives have a shot of passing the laugh test.
However, reports today indicate the FCC may indeed do the right thing and reclassify broadband, protecting net neutrality and other elements of the broadband plan:
Federal Communications Commission Chairman Julius Genachowski has decided to reregulate Internet lines to protect net neutrality, siding with consumer groups and Internet companies worried that Internet providers have too much power.
On Wednesday, Mr. Genachowski’s staff began briefing the FCC’s commissioners on how they will propose to regulate Internet lines under rules that were written for traditional phone networks. Some of those rules won’t be applied to Internet networks, FCC officials say, but others will be used to enforce net neutrality, or regulations that require Internet providers to treat traffic equally and not slow or block websites.
Phone and cable companies opposed the FCC reclassifying regulation of Internet lines under Title 2 of the Communications Act, which was written for traditional phone networks and includes provisions such as rate regulations.
We’re not out of the woods yet. All reports both for and against the FCC’s ruling have been speculative, so it’s worth digging into why the FCC failing to reclassify broadband is the wrong move.
Aparna Sridhar, Free Press’s policy counsel, said today, "FCC failing to reclassify broadband is risky legally. The FCC could try lots of popular stuff, like broadband expansion, only to have the decisions it makes overturned piece by piece years later in the courts."
Barbara van Schewick, professor of law at Stanford, agreed, "Any decision by the FCC [including reclassification] will be litigated [by the telecom companies]. With Title II authority, we’ll have one case and then [the FCC’s authority] will be clear. If the FCC sticks with Title I then we’ll have numerous litigations."
The industry’s claims that reclassification would bring about awful consequences are utterly unfounded.
The Internet grew up under Title II classification before the Bush administration made their historic mistake and reclassified it under Title I information services. Title II communication services authority at the birth of the Internet didn’t stop anyone from investing in it – the 1990s online stock craze and bubble is ample evidence of that.
And reclassifying broadband under Title II communications services wouldn’t bring a host of new regulations on the Internet, either, as the industry claims. The FCC has the authority to "forebear" in its regulations and not apply some of the things it can under Title II to Internet service. Indeed, in regulating newer communications services the FCC has done this repeatedly, as some of the Title II regulatory powers only apply to older services like phone lines. The FCC could come up with its forbearance rules before reclassifying, assuring that broadband services would never be regulated under the full Title II authority and instead be regulated under the modernized forbearance rules from the start.
And so, the FCC, Chairman Genachowski, and President Obama have a choice.
Right now, the administration is at their height in power. Failing to stand up for net neutrality and reclassify broadband would cost the administration support in the netroots and in the tech/online world, a constituency Obama has courted heavily as far back as the 2008 Democratic primary when he first pledged his support for net neutrality. Not doing reclassification now, with seats likely to be lost in Congress in the midterms, means this won’t be on the table again until 2013, if ever. And the recent court ruling, coupled with the FCC’s admirable and ambitious plans to bring affordable and fast Internet service to the rest of America, only heighten the urgency.
If expanding Internet access in America is important; if cyber-security is important; if requiring disclosure from cable and phone companies on their network management practices, speeds, and costs are important; if net neutrality and not allowing telecoms to block access to websites like this one is important; then the FCC and the Obama administration must make the right choice and reclassify.
It’s the only sound legal move and it’s the only real choice that would protect the American public instead of giving into big corporate demands to protect profits at the expense of the rest of us.