The FCC Makes Its Move on Net Neutrality


Earlier this week, the Washington Post reported that, according to multiple anonymous sources, FCC Chairman Julius Genachowski had decided to abandon the idea of implementing Net neutrality regulations by changing the classification of broadband Internet from a Title I "information service" to a more regulation-friendly Title II "telecommunication service." Instead, the Post's sources indicated, Genachowski would likely pursue a less heavy-handed Net neutrality strategy under Title I.

It now appears that those reports were wrong—mostly: The FCC now plans to classify broadband Internet as a Title II service and use Title II regulatory authority to enforce Net neutrality. However, the switch amounts to what you might call a half a reclassification. At least for now, anyway, the agency will not subject broadband providers to the full slate of Title II regulations. From The Wall Street Journal:

The decision has been eagerly awaited since a federal appeals court ruling last month cast doubt on the FCC's authority over broadband lines, throwing into question Mr. Genachowski's proposal to set new rules for how Internet traffic is managed. The court ruled the FCC had overstepped when it cited Comcast in 2008 for slowing some customers' Internet traffic. In a nod to such concerns, the FCC said in a statement that Mr. Genachowski wouldn't apply the full brunt of existing phone regulations to Internet lines and that he would set "meaningful boundaries to guard against regulatory overreach."

The FCC is trying to portray the move—in particular, the decision to forbear many Title II requirements—as a centrist "third-way" compromise, and, in a memo from its general counsel, continues to insist that it's not actually regulating the Internet. Instead, according to the memo, "For the broadband access services that a majority of on-line consumers use to reach the Internet, the Commission refrains from regulation when possible, but will step in when necessary to protect consumers and fair competition." 

Even ignoring the considerable judgment calls enforcing "fair" competition would require, here's the problem: When FCC staffers claim they're not going to regulate the Internet, what they actually mean is that, at least with regard to Net neutrality rules, they're not going to regulate the content layer. But it's tough to say you're not regulating the Internet when you are, in fact, imposing rules on how Internet traffic can and cannot be managed by Internet service providers. 

Meanwhile, even if you buy the idea that ditching some of the regulations equals some sort of gentle compromise, there's no guarantee that future administrations and FCC officials will do the same. This FCC might forbear the most onerous regulations and rule fairly, but future agency staffers might have different ideas. So even if this FCC doesn't take advantage of all of its new powers, it's certainly setting the stage for future agency officials to overreach.

More on Net neutrality and Title I/Title II here and here.