Intellectual Property

What's In a Title?

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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.

Ask Howard Stern about how well the FCC has protected his free speech rights.

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.

NEXT: Turn-a-coat Is Fair Play: Kathleen Parker Wins Pulitzer for Newspaper Commentary

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  1. Stern makes me ashamed to admit that I was ever 13.

  2. There’s something the FCC isn’t telling us: Why it wants net neutrality and this so-called “National Broadband Plan” so fucking bad.

    I smell nefarious intent.

    1. It’s the same reason for everything else the FCC does.

      1. Like I said… nefarious intent.

    2. It may be just the minimally harmful bureaucratic urge for more regulatory power to make oneself look more important (and thus get one considered for even more powerful jobs in the future). I doubt it’s a desire to regulate internet content, at least at this early stage.

  3. 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

    Isn’t there one of those in D.C.?
    http://www.gothereguide.com/wa…..ral-place/

  4. Net neutrality advocates like Free Press are now arguing that the FCC should push forward with changing the classification [of Internet service from Title I Services to Title II Services] in order to protect “free speech.”

    A basic and so far true axiom of government activism is that the purported reason given by a political organization or lobbyist group to justify government intervention will always be totally contrary to the true reason. In this case, the purported reason given by the strangely-named “Free Press” group for Net Neutrality is to protect “free speech”, which means that the true reason is the contrary: it is to suppress free speech.

    1. Hey guy! Where you been?

      1. I will mostly just visit once in a while. The discussions I had before amounted to writting a number of words equivalent to a few essays or a thesis, which is too for me. I will mostly be writting stuff that interests me in my blog and maybe comment here one or two times a week or so. I am also giving my Good Riddance to California by moving to Texas, this week, so it will be a couple of hard months…

        1. Hey! Good to here from you, there were some nasty rumors here regarding your disappearance, man , someone even said you killed a guy. Be warned though man, some guys have been around asking questions about you, real heavies, if you get my drift. We didn’t tell ’em a goddamn thing, though. And godammit man!, watch your fucking ankles around here, there’s a nasty sockpuppet infestation, and those little bitches bite… hard. Don’t scare ’em though ’cause if you kill ’em scared the soup is bitter.

          Checked out the blog, looks okay on first inspection. Just got home from work and I’m too beat to read everything, but I got it bookmarked.

  5. Even during the Clinton era, FCC officials warned about the dangers of Title II classification.

    Let’s not forget that right now we are not under the Clinton era, but under the Obama era, a totally different ball game. And not precisely for the good.

  6. The net neutrality thing also strikes me as odd. Most of what bittorrent does is enable people to exchange pirated music, movies and software.

    The ISPs are actually helping the FCC crack down on IP violations by throttling bittorrent.

    It would seem to be strongly in the governments favor to allow ISPs to give “authorized” content distributors favored bandwidth access. It would certainly help the business model for people who want to stream video and movies, if the ISP could charge them for preferential access to bandwidth.

    Nobody’s actually throttling anyone for speech content. They’re just prerentially allowing paying customers to send video and movies to eachother over non-paying ones.

  7. The net neutrality thing also strikes me as odd. Most of what bittorrent does is enable people to exchange pirated music, movies and software.

    The ISPs are actually helping the FCC crack down on IP violations by throttling bittorrent.

    It would seem to be strongly in the governments favor to allow ISPs to give “authorized” content distributors favored bandwidth access. It would certainly help the business model for people who want to stream video and movies, if the ISP could charge them for preferential access to bandwidth.

    Nobody’s actually throttling anyone for speech content. They’re just prerentially allowing paying customers to send video and movies to eachother over non-paying ones.

    1. I didn’t think the FCC had anything to do with IP enforcement. Isn’t that ICE’s turf?

  8. “Nobody’s actually throttling anyone for speech content.”

    Not yet, Hazel, but this is the same bunch that wants the Fairness Doctrine, or some mutation thereof.

    Never trust those fuckers.

    1. Would the Fairness Doctrine be good for third parties?

      Since broadcasters are supposed to present “contrasting views” and all.

      1. No, “fairness” is like “equality” in race or gender — it’s explicitly a set of policies designed to benefit one group, which may or may not make the situation more fair or equal, but that wasn’t the point anyway.

  9. I hope that if you rephrased the question as “Do you want to give the FCC the same powers over the Internet as it has over broadcast TV?” some of these idiots would reconsider.

    1. I think it’s:

      “If you really, truly believe this is a step in the right direction and nothing bad will happen, write your name and address down on a public petition of some kind.

      Then, if the FCC does censor some speech on the internet within the next 20 years, we’re going to hunt you down and beat the shit out of you, you fucking tools. That applies regardless which party controls the FCC at the time, because you’re handing the power to all of those assholes.”

  10. Besides the NARAL incident of which I was unaware, Verizon (or at least, a Canadian subsidiary) also cut service to an organization in order to prevent free speech, in October 2006.

    http://yro.slashdot.org/story/…..?art_pos=1

    Not that the FCC did anything about it, of course, but let’s not ignore the problem.

    1. Wow, that’s a real winner of an argument:

      “Support net neutrality — otherwise, ISPs may cut pedophile-friendly ISPs out of the internet by refusing to connect with them.”

      Might persuade some of the 4chan crowd, I guess.

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