Good job Internet, you did it: by a 3-2 vote, the FCC has officially voted to regulate the Internet like a utility, establishing the strongest victory for net neutrality. So what happens now?
The decision firmly reclassifies the Internet as a telecommunications service under Title II of the Communications Act, instead of an information service, like it was previously defined by the FCC in 2002. But the battle isn’t over yet.
Legal fights are coming
For starters, Verizon, and Internet service providers (ISPs) like it, are going to throw a fit. In plain English the decision prevents them from blocking, throttling, or giving paid prioritization to Internet users, and to act as common carriers for all content. It’s something that Verizon, along with other giants like AT&T and Comcast, have been fighting for years. And that won’t stop now.
It’s all but guaranteed that the FCC is going to have to defend these changes in court (Comcast, apparently, will see to that), and the question on everyone’s minds is if the new Title II classification will hold up. And Doug Jarrett, in an interview with LXBN TV, says they may have a case:
I think their best argument is that high speed Internet access, broadband, really squarely meets the Internet definition of information services under the Communications Act. And an information service is not a telecom service; they are mutually exclusive. Therefore, on a mutual reading of that definition, high speed Internet access should not be regulated as a telecommunications service because it more closely fits the definition of an information service.
I think the other part of the 2002 cable modem decision, that led to the current classification of Internet services as an information service, is consumers really see the internet as an information service; as the ability to access information as well as to transmit information. And that clearly meets the definition of an information service.
It’s not a done deal, of course; the FCC could argue its side successfully. But it’d have to make a case for why they’re revising the 2002 decision. The contention is whether there’s an explanation they could give that’s good enough, writes Jacob Kastrenakes for The Verge:
The FCC will have to explain why internet service no longer fits [the information service] definition. “In fact, the FCC is going to have to deal with significant evidence that, if anything, broadband is now even more functionally integrated than it was in 2002,” [says Bennett Ross, a partner and chair of the telephony group at law firm Wiley Rein, which represented Verizon against the FCC.] Nowadays, he says, internet providers routinely bundle security tools, cloud storage, and other new offerings that “I think most everybody would agree are information services,” which seems to entrench them in the commission’s existing definition.
Net neutrality advocates see it very differently. Even though internet services may include more bundled tools these days, those tools aren’t really relevant anymore — and often, they’re actually pretty annoying. “If you look today at what [service providers] advertise and what people buy, yeah sure, you can still get your Comcast email account, but that’s not the thing people are buying this for,” Harold Feld, a senior vice president with interest group Public Knowledge, tells The Verge. “That’s not a major part of the offer, that’s become like voicemail with your phone. …We believe that if you look at how things are today, it’s very different than the way they were 15 years ago.” (Opponents would counter that it doesn’t matter what consumers are buying it for, it just matters what the ISPs are selling.)
Feld also believes that the FCC won’t have much trouble defending its new opinion. “This is a common misstatement of the law,” he says. “The Supreme Court has been very clear about this, particularly with regard to the FCC in the last five years or so where it’s said, ‘No, the FCC does not need to explain why it’s changing its mind, other than to say look we had this policy before, we think that this other policy is a better way to go, and here’s our new policy.'”
Given that the Title II move was the best the FCC had, if it doesn’t hold up in court net neutrality advocates may find themselves scrambling for a way the FCC can salvage the movement.
Beware the government’s sting
Though many welcome the government’s move to step in and regulate ISPs, others (like Mark Cuban) fear that we could be out of the frying pan and into the governmental fire, as it were. As Travis Crabtree writes for eMedia Law Insider:
Do we trust the Government, or do we trust Big Business? More precisely, who do we trust not to be a jerk in the future?
Do you think the likes of Comcast would throttle competitors’ content or force the big content providers into fast lanes leaving all start-ups back at dial-up speed?
Do you think the Government can stay at this minimally invasive level of regulation whereas before the Internet has thrived, at least in part, because of the lack of government regulation.
Leave it to the BBC Radio to have Mark Cuban on as a guest to provide additional interesting arguments as to why the new regulations are bad–by focusing on the future? Listen here. In effect, Cuban asks whether we want companies to be able to manage their networks as we start to see more driverless cars and online virtual reality applications. Will the next new thing have to ask the government for permission to run online?
The regulations, as currently written, take a soft hand approach. But, we should be vigilant to make sure they stay that way.
Specifics conquer
Even proponents of the new ruling have some bones to pick with the FCC. The Electronic Frontier Foundation has (of course) long been a proponent of net neutrality, but they’re still a bit hesitant about some of the wording. Specifically that the FCC’s fact sheet (their exact regulations haven’t been released as of the time of this writing), which calls for a “general conduct rule.”
If that sounds vague it’s because it is—which is exactly what the EFF is worried about: the only guidance the fact sheet gives for it is that it will allow the FCC to review, and potentially punish, any non-neutral practices that may “harm” consumers or edge providers. As Corynne McSherry wrote on the EFF’s blog before the vote:
The FCC will evaluate “harm” based on consideration of seven factors: impact on competition; impact on innovation; impact on free expression; impact on broadband deployment and investments; whether the actions in question are specific to some applications and not others; whether they comply with industry best standards and practices; and whether they take place without the awareness of the end-user, the Internet subscriber.
There are several problems with this approach. First, it suggests that the FCC believes it has broad authority to pursue any number of practices—hardly the narrow, light-touch approach we need to protect the open Internet. Second, we worry that this rule will be extremely expensive in practice, because anyone wanting to bring a complaint will be hard-pressed to predict whether they will succeed…Third, a multi-factor test gives the FCC an awful lot of discretion, potentially giving an unfair advantage to parties with insider influence.
We are days away from a final vote, and it appears that many of the proposed rules will make sense for the Internet. Based on what we know so far, however, the general conduct proposal may not. The FCC should rethink this one.
Clearly there’s still some kinks to be worked out in the net neutrality plan. Though there’s mixed opinions on what the next move should be for net neutrality, many people argue that any victory in this arena is monumental. Possibly even more so than the first amendment. More is sure to develop in this story, but for today citizens of the Internet deserve a celebration.