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| The FCC is planning to use Title II to advance net neutrality. Image: Shutterstock |
Federal Communications Commission Chairman Tom Wheeler
garnered cheers from net neutrality supporters recently when he described the
FCC’s new campaign to regulate the internet.
However, the future of the net is far from decided.
Wheeler’s proposal would have broadband internet services
governed by the same Title II regulations that are used on the phone system. Such an arrangement would not allow providers
to selectively slow traffic (particularly video streaming services like Youtube
and Netflix) in order to encourage customers to buy access to a faster
connection. Title II would also allow
the FCC to have oversight on deals between telecom and cable companies and the
internet carries of their networks.
The legality of such a ruling remains in question,
however. Congress has never taken a
specific position on net neutrality, and because of this, the law is a gray
area.
In 2010, the FCC attempted to organize an “open internet”
policy based on a minor provision in the 1996 overhaul of the Communications
Act of 1934 that called for the FCC to encourage investments and competition in
the telecommunications market. The FCC’s
“open internet” policy failed, likely because they couldn’t prove that they had
the jurisdiction to impose such rules.
However, if the FCC could prove that the internet should be
legally treated similarly to a phone system—as a common carrier—internet access
would be put under the same rules as govern railroads or pipelines.
The idea of being put under Title II and its potential
restrictions has alarmed telecom and cable companies worried about excessive
regulation. “The radical course of ‘reclassification’ will lead to
endless rounds of litigation and will likely be reversed on appeal,” wrote
Kathleen Grillo, Verizon Communications Inc.’s senior vice president for
federal regulatory and legal affairs.
It
has also been suggested that broadband carriers could claim they have a First Amendment
constitutional right to decide what’s carried on their networks.
“Reclassification
would be contrary to the public interest by preventing investment, stifling
innovation and increasing compliance costs for small businesses,” wrote lawyers
for the Wireless Internet Service Providers Association in a comment last year.
In
the end, however, many are suggesting that it comes down to money rather than
legal rights. “There is simply so much money
at stake that neither side is going to give up easily,” wrote
Frederic Paul in NetworkWorld. “We
can expect to see prolonged, incredibly expensive court battles, supported with
extensive media campaigns on both sides. And I wouldn't count on either side
sticking exclusively to the facts when a little obfuscation on this complex issue could
garner support.”
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