By Julia Graber*
On February 26th, something historic happened: The public interest won at the FCC.
In doing so, the FCC not only opposed the cable companies trying to kill Net Neutrality, but it also based its rules on the strongest legal foundation possible: Title II of the Communications Act of 1934, as amended (“the Act”). Specifically, it reclassified broadband access service as a telecommunications service under Title II.
The Act defines telecommunications as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” It also gives the FCC the authority to prevent the companies offering telecommunications services from engaging in unreasonable practices. Broadband access should be classified as a telecommunications service since users pay ISPs for precisely this kind of transmission service—the ability to send and receive the information of their choosing, without undue interference from the broadband Internet service provider carrying the information.
This technology-neutral principle protects open Internet access by enabling the FCC to ban unjust and unreasonable discrimination. The new FCC rules prohibit ISPs from blocking, throttling, or prioritizing any content or applications that run over their networks, drawing on the Commission’s authority to prevent any telecommunications carrier from engaging in such conduct.
The reason broadband needed to be reclassified goes back to over a decade ago, when the FCC made the first in a series of mistakes. Back then, the Commission flouted the will of a bipartisan Congress and classified cable-modem broadband access as an information service rather than a telecommunications service under the Act. At the time, cable companies argued that broadband Internet access was a “unitary service” in which such access came with email and news groups hosted by the provider. They claimed that because broadband providers bundle these information and transmission components, the FCC had no choice but to define the entire broadband offering as an information service.
The FCC caved to lobbyist pressure, ignored the essential character of the broadband transmission service on offer, and abandoned the strict nondiscrimination requirements of Title II. Instead, the agency adopted a set of open Internet principles that service providers mostly followed (except when they didn’t). This approach ultimately didn’t stand up to legal challenge.
In its January 2014 ruling in Verizon v. FCC, the D.C. Circuit rejected the FCC’s attempt to enforce Net Neutrality under this framework, noting that the type of nondiscrimination rules the agency tried to apply to broadband couldn’t be reconciled with broadband’s classification as an information service. The court said that if the FCC wanted to impose such common-carrier duties on broadband providers, the agency had to reclassify ISPs as common carriers.
This decision reignited the fight for real Net Neutrality. FCC Chairman Tom Wheeler initially ignored the public’s call for strong open Internet rules and took an industry-friendly approach, proposing loophole-ridden rules that would have allowed rampant discrimination online. Millions spoke out, demanding that the FCC keep the Internet free and open. This pressured the FCC to pursue the common-sense path of Title II reclassification and restore the proper legal authority for Net Neutrality protections.
When Congress updated the Communications Act in 1996, it left open the question of what kind of technology would develop. It appreciated that regardless of the medium we use to connect and communicate, the social and policy benefits of common carriage endure. Broadband is a technological leap forward, but the fact that the technology has evolved shouldn’t alter users’ rights to an open communications network. The FCC’s decision to reclassify means that broadband providers must allow information to flow freely, rather than serving as gatekeepers for their customers’ information.
Unfortunately, the February 26th vote to reclassify didn’t mark the end of this debate. Already six lawsuits challenging the rules have been filed—from AT&T, Texas-based Alamo Broadband, and the four main lobbying groups representing the ISPs. Congress has held five hearings in which members grilled the FCC over the new rules, and Rep. Doug Collins (R-Ga.) has introduced a resolution of disapproval to overrule the Net Neutrality order.
The strong legal foundation Title II provides means that the rules will most likely withstand court challenges, but for the foreseeable future Net Neutrality advocates will need to keep up the fight to protect the open Internet.