Title II is the key to net neutrality—so what is it?
What happens in the next four months will go a long way to determining the future of the Internet. By now, you probably know what’s at stake: net neutrality, or, as some call it, the open Internet.
Overwhelmingly, advocates for net neutrality are calling on the Federal Communications Commission (FCC) to reclassify Internet service providers (ISPs) as common carriers under Title II of the Communications Act of 1934 (PDF). The popular belief is that Title II classification would allow the FCC to protect net neutrality by regulating against against paid prioritization.
Paid prioritization is a subversion of net neutrality through allowing ISPs to discriminate between websites’ data. If allowed, ISPs could charge content providers, the most common example being Netflix, to deliver data to customers through a so-called “Internet fast lane.”
With all the ballyhoo for Title II, we wanted to take a closer look at it and figure out why so many think it’s the best course to ensure net neutrality. But first, let’s very quickly recap how we got to this point.
The impetus for this entire debate came in January, when a federal appeals court struck down key parts of the FCC’s Open Internet Order of 2010. The ruling was a blow to net neutrality, however, it left the door open for the five-member FCC to write new rules to fortify the open Internet. Ever since, FCC Chairman Tom Wheeler has vowed to do so.
Many began to question Wheeler’s conviction, when it was reported last month that he intended to pursue a plan that would allow for paid prioritization.
Last week, the FCC voted 3-2 to approve a notice of proposed rulemaking (NPRM) on net neutrality. Basically, the FCC is going to take public comments on the topic for 120 days, then write rules that either reinstate or further fracture the open Internet.
While most reports on the last week’s FCC meeting suggested that the commission is moving forward with a plan that would allow some form of a “fast lane” and end net neutrality, the wording of the NPRM suggests that the fate of the Internet has yet to be determined.
Section 706 vs. Title II
As mentioned above, all of the most vocal open Internet advocates seem to be calling on the FCC to reclassify ISPs as Title II common carriers.
These advocates include groups such as Public Knowledge and Fight for the Future, members of Congress such as Sen. Ed Markey (D-Mass.) and Rep. Henry Waxman (D-Calif.), as well as the 105,000 signees of an online petition to the White House.
In naming his proposal “Protecting and Promoting the Open Internet,” FCC Chairman Tom Wheeler is fashioning himself as a champion for net neutrality. At last week’s meeting, he said it was an issue he understands “in [his] bones.”
Yet, unlike the vocal net neutrality advocates, Wheeler does not seem to be onboard with Title II. His proposal promises to “seriously consider the use of Title II,” but suggests relying on Section 706 of the Telecommunications Act of 1996 (PDF) to be the legal authority to regulate ISPs.
Looking at both documents, the first thing someone might notice is that Title II includes more than 100 pages of regulations that common carriers must follow to ensure they act “in the public interest.” Section 706 is two paragraphs long.
Section 706 would give the FCC the authority to regulate ISPs to “promote competition in the local telecommunications market” and “remove barriers to infrastructure investment,” but it’s not totally clear how that would allow the commission to safeguard net neutrality.
With Title II, the second subsection (202) clearly states that common carriers can’t “make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services.” From this language, it’s a bit easier to see how Title II connects to net neutrality.
“Under Title II, the FCC would be free to create blanket rules that prohibit problematic discrimination,” Michael Weinberg, vice president of Public Knowledge, told the Daily Dot in an email.
Why things are the way they are
If Title II classification would give the FCC such broad authority to regulate ISPs, one might wonder why the FCC hasn’t already classified them as such.
Some would say it’s because government regulation does not promote competition and growth, while others would argue it’s because ISPs know how to use the almighty dollar to make their voices heard in Washington.
The official version of the story is that in 2002, the FCC voted to classify cable modem service as an “information service,” which falls under Title I of the Communications Act. The justification was that less regulation would “promote investment and innovation,” which would result in “better quality, lower prices, and more choices for consumers.” The FCC followed suit and classified wireless broadband Internet access as an information service in 2007.
In 2010, the FCC explored the option of reclassifying ISPs under Title II by seeking comments and opinions from the public, but the inquiry didn’t lead to any changes. Now, the FCC is seeking updated comments and will supposedly revisit the decision, though it’s anyone’s guess whether it will do so in earnest.
Potential drawbacks of Title II
As it relates to telecommunications, U.S. common carrier laws are 80 years old. Sure, they were updated in 1996—18 years ago—but that’s still well before anyone fully understood how the Internet would develop.
FCC Commissioner Michael O'Rielly, at last week’s meeting, called Title II “an innapropriate framework for today’s dynamic technologies.” O’Rielly, a Republican, was one of the two that voted against Wheeler’s proposal.
“Title II includes a host of arcane provisions,” O’Rielly said. “The idea that the commission can magically impose or sprinkle just the right amount of Title II on broadband providers is giving the commission more credit than it ever deserves.”
If the FCC did reclassify ISPs under Title II, the commission said would use its authority to forbear, or selectively decide not to enforce sections of the Communications Act that it decides don’t apply to broadband. For those of you keeping score at home, Wheeler’s proposal said that if it does decide to reclassify ISPs, the FCC would likely forbear from applying all but sections 201, 202, 208, 222, 254, and 255 of Title II.
As a supporter of Title II reclassification, Weinberg of Public Knowledge said that the common carrier laws are not perfectly suited to broadband companies, but they are the best option currently on the table. Weinberg even traced the concept of common carriage all the way back to ancient Roman law.
“While the details of implementation can change, the general concepts embodied in Title II have stuck around so long because they have proven to be valuable,” Weinberg said.
Another option would be for Congress to pass a new law specifically designed to regulate the ISPs in a way that would benefit citizens of the United States. Just kidding, that’s not actually an option for some reason.
The future of the Internet
Few would argue that Internet is unbelievably important, and that it needs nurturance to continue to thrive. As we approach this FCC net neutrality crossroads, there are many differing opinions on the best course of action to take.
Title II reclassification is one such course that has has certainly garnered a good bit of attention from net neutrality advocates.
Whether or not you agree with them, you can make your voice heard by submitting a comment to the FCC using this form. Enter “14-28” in the proceeding number field and “Protecting and Promoting the Open Internet” for the name of flier field. You can also view the tens of thousands of comments others have submitted by clicking here.
Come early autumn, the FCC is going to make a decision that may well have lasting implications on the Internet. Consider yourself warned.
Illustration by Jason Reed