Why the ‘Internet As a Utility’ Is Good for Net Neutrality

Author

Eric Ravenscraft

February 5, 2015

Today, the FCC officially announced that it will vote on whether to classify the internet as a utility under Title II regulations. Here’s what that mess of jargon means and how it affects you.

Net neutrality, as we’ve discussed before, is the idea that the internet should be a level playing field for newcomers and established giants alike. While this was previously a quiet understanding, the FCC wants to make it official.

In a statement given to Wired, FCC Chairman Tom Wheeler explained how the agency plans to reclassify internet service providers (like Comcast and AT&T) using the same rules that are currently used on utilities like wired phones. In the past, it’s been tough for the FCC to create legally-binding rules for ISPs. This is because ISPs have previously been classified as “information services.” The new rules would classify them as “telecommunication services.”

Moreover, the new proposed rules would apply to wireless broadband as well, meaning cell carriers like Verizon, AT&T (again), Sprint, and T-Mobile would also be bound by the same requirements, which means no more exceptions just because a company delivers internet to your phone instead of your computer. Up until now, wireless broadband providers have operated under very different, less strict rules.

So what will all that change? Well…a lot.

Making Internet a Utility Means Rules That Can Be Enforced

Why the "Internet As a Utility" Is Good for Net Neutrality

As stated, the internet is currently regulated as an “information service.” This means that there are certain rules governing existing utilities that the FCC can’t legally apply to ISPs. For example, in 2010, the FCC attempted to adopt rules that would restrict what ISPs were and weren’t allowed to do. These rules were called the Open Internet Order and they prohibited blocking lawful content, applications or websites, among other rules.

Many net neutrality proponents didn’t think it went far enough, but it was something. However, ISPs including Verizon challenged the rules. The results of those court cases (which take an excruciatingly long time to process) determined that the FCC does not have the authority to create rules like that, because the FCC does not classify ISPs as a common carrier (emphasis mine):

[T]he Commission has established that section 706 of the Telecommunications Act of 1996 vests it with affirmative authority to enact measures encouraging the deployment of broadband infrastructure. The Commission, we further hold, has reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here—that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet—is reasonable and supported by substantial evidence. That said, even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates. Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.

This classification has been a legal hurdle for the FCC for many years. Essentially, the FCC wanted to give ISPs some fairly loose rules to encourage investment and innovation, but then wanted to step in with stricter rules when it didn’t like what ISPs did with their freedom. Admittedly, the FCC wanted to have its cake and eat it, too.

However, over the last decade, infrastructure investment hasn’t been as prolific as the FCC would like, so now the FCC has decided it’s time to tighten the reins. Because Title II would treat ISPs like a common carrier, rules like the ones created in 2010 would actually be enforceable.

Exactly which rules, however, isn’t entirely clear. Title II is actually a collection of potentially enforceable rules. And, in fact, many of them will not be applied at all because they would make no sense for an internet provider. As legal blog Skadden explains:

These sections include obligations to file terms and prices for service with the FCC (Section 203), procedures governing market entry and exit (Section 214), requirements covering telecommunications services for disabled individuals (Section 255) and even restrictions on alarm-monitoring services provided by certain entities (Section 275). Of particular importance for net neutrality, however, Title II also contains restrictions (Section 202) that forbid entities offering telecommunications services from engaging in “unjust or unreasonable discrimination” in their charges, practices and services. As discussed below, this section of Title II has drawn the most attention in the ongoing net neutrality debate…

In proposing new net neutrality regulations in May, the FCC noted that one of the ways in which it could impose net neutrality obligations on broadband services would be pursuant to its legal authority under Title II. This action would result in the imposition of the entire set of Title II regulations on broadband service providers. In its May notice, however, the FCC stated that it would likely forbear from applying a number of Title II sections to broadband providers to minimize the resulting regulatory burden on these providers. In his recent statement supporting Title II, President Obama also noted that the FCC should forbear from those sections of Title II that are “less relevant to broadband services.” In fact, of the almost 50 different Title II sections, the Commission indicated in May that it would forbear from application of almost all of them, except for the following:

  • Section 201 (requirement for just and reasonable service and charges);
  • Section 202 (prohibition against unreasonable discrimination);
  • Section 208 (processes governing complaints filed with the Commission);
  • Section 222 (requirements governing customer privacy);
  • Section 254 (universal service fund obligations of telecomm carriers);
  • Section 255 (access by persons with disabilities).

It’s a strange legal move, but it allows the FCC to find a balance between over-regulation and regulation with no teeth. While we don’t know exactly which rules will be applied yet (many news outlets expect these will be revealed this week), it’s safe to assume they’ll include things like prohibiting unreasonable discrimination, certain rules against unfair pricing policies, and potentially even a requirement to provide access to under-served areas.

Ultimately, though, what it means is that the FCC will be able to intervene when ISP practices reach damaging levels. At the moment, if consumers have a complaint with their ISP (and there’s no shortage of those complaints), they can appeal to advocacy groups like the EFF, complain to their ISP directly, or hope Congress does something about it. Unfortunately, the EFF doesn’t have any actual authority, ISPs have little motivation to change (since they face little to zero direct competition), and Congress is frequently bogged down with gridlock. Giving the FCC Title II authority would mean that consumers would have an agency they could appeal to that can actually accomplish something.

Title II Could Mean More Innovation (Like Google Fiber)

Why the "Internet As a Utility" Is Good for Net Neutrality

Title II classifications also includes regulations regarding building infrastructure. On this front, Google of all companies has expressed an interest in being classified as a Title II service provider. Currently, Google is trying to build out its Google Fiber internet service, but it’s hit some roadblocks.

Primarily, Google has butted heads with existing ISPs when attempting to utilize existing infrastructure. For example, in Austin, Texas, AT&T owns about 20% of the utility poles. Google has requested to use them, but AT&T wanted to charge more money than it would to other ISPs. If Google were classified as a telecom provider, AT&T would be legally obligated to provide access at a fair market (read: lower) rate. But until that happens, AT&T is unwilling to share:

“Google has the right to attach to our poles, under federal law, as long as it qualifies as a telecom or cable provider, as they themselves acknowledge,” AT&T Public Affairs VP Tracy King told the American-Statesman. “We will work with Google when they become qualified, as we do with all such qualified providers.”

If Title II rules are adopted, Google argues, that distinction would no longer be necessary. Google would be allowed to access the existing infrastructure under the same rules as any other ISP. This means that Google wouldn’t have to dig up the ground and build redundant utility poles just to bring Google Fiber to a neighborhood where it’s already technically feasible (emphasis and link added):

“Currently, therefore, a BIAS provider that does not offer its broadband access service on a common-carriage basis, and does not offer other cable television or telecommunications services over its network, lacks the federal protection Section 224 affords to traditional cable systems and telecommunications carriers,” writes Google’s Director of Communications Law Austin C. Schlick. “Google Fiber, for instance, offers its Basic Internet service on a standalone basis and its Gigabit Internet service alone or in conjunction with an Internet Protocol video service that is not traditional cable TV, so it lacks federal access rights pursuant to Section 224. If BIAS were classified as a telecommunications service, however, then the statutory right of access to utility infrastructure would extend to all providers of BIAS, regardless of what services they otherwise provide.”

As anyone who’s read about Google Fiber knows, the service provides serious competition to existing internet service. So much so that it actually worries existing providers. Google Fiber is exactly the type of competition that internet in the US needs, but the lack of regulation forcing existing ISPs to play fair is actively preventing infrastructure investment. Ironically, the lack of rules that are keeping newcomers out.

While it’s not entirely clear whether or not the FCC will give Google (or other companies) the access it wants, it does mean that the FCC will have more authority to do so. Again, Title II contains stricter rules, which can potentially result in over-regulation, but at the moment, all of the US’s immediate concerns have more to do with abusing loopholes in an easygoing system, rather than facing regulatory hurdles in a strict one.

What You Can Do About It

Why the "Internet As a Utility" Is Good for Net Neutrality

The current rules that are being proposed by the FCC still need to be voted on. If they pass, we can probably expect that Congress will respond by potentially threatening to pass a bill undoing the action, but given how split Congress is, and the White House’s general support for the plan, it’s likely that this will end with the FCC’s vote for the near future. That vote will occur on February 26th, which is slightly more than three weeks away.

If you want to voice your support (or dissent!) for these new rules, you can contact the FCC directly here. While the current vote will be contained solely within the FCC, you may want to reach out to your Congressional representation in the near future, depending on how the vote goes.

This article was written by Eric Ravenscraft from Lifehacker and was legally licensed through the NewsCred publisher network.

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