The decision by a federal appeals court last week to vacate the Federal Communication Commission's ruling against Comcast for throttling BitTorrent service has left the the FCC in a tough spot. Without clear authority to regulate ISP traffic management practices, the FCC's proposed Net neutrality rules may be dead in the water, and its vaunted National Broadband Plan is in "legal limbo." Now, there are now strong signs that the agency might try to assert regulatory authority by classifying Internet service as a Title II "telecommunication service" rather than a Title I "information service." The advantage for the FCC is that Title II services (for example: telephone networks) are subject to stricter regulatory requirements.
Net neutrality advocates like Free Press are now arguing that the FCC should push forward with changing the classification in order to protect "free speech." Let's ignore, for a moment, that freedom of speech means freedom from government interference with speech. Arguing that the FCC should be assigned to protect free speech makes about as much sense as arguing that the government ought to establish an official church in order to protect freedom of religion. Far from protecting free speech, the FCC has a long record of regulating and punishing it—telling numerous broadcasters, for example, what they can and can't say on air. Indeed, it's pretty common to find that the FCC has ordered some private organization not to say, show, or imply something. ISPs, on the hand, have an imperfect but overall pretty good record of letting individuals and organizations publish whatever they want; examples of blockages are few and far between—Verizon's decision to refuse to send a NARAL text blast, for example (which was reversed almost immediately); AT&T's one-time bleeping of an anti-Bush comment at a Pearl Jam concert. But compared to the FCC's long history of censorship, ISPs have given us precious little reason to worry.
A slightly less absurd, but still faulty, argument is that regulating ISPs as Title II telecommunications services would simply mean reversing the deregulation that occurred under President Bush. This story is not quite as simple as it seems. Broadband was not regulated as a single entity during the Bush years; cable Internet was definitively ruled an information service in 2002 (and didn't have to abide by common carrier requirements beforehand). and in 2005, DSL and wireline services were ruled information services.
But focusing on the history elides what is arguably the more important question: Does Internet service actually meet the definition of a Title II internet service?
I think the following response is fairly convincing:
The provision of Internet access service involves data transport elements: an
Internet access provider must enable the movement of information between customers' own computers and the distant computers with which those customers seek to interact. But the provision of Internet access service crucially involves information-processing elements as well; it offers end users information-service capabilities inextricably intertwined with data transport. As such, we conclude that it is appropriately classed as an "information service."
One hopes the FCC gives that answer some weight as well: It is, after all, from the agency's own report on how to deal with emerging regulatory issues involving Internet providers back in 1998. That report later goes on to note that classifying Internet providers as telecommunications would result in "negative policy consequences" including "significant consequences for the global development of the Internet." It also helps put the claim that a shift in classification would simply return us to a happy, pre-Bush state of regulation in context: Even during the Clinton era, FCC officials warned about the dangers of Title II classification.