Saving the Internet from the FCC

Why the Web doesn't need a regulator.

The Internet is in trouble. And it's all George W. Bush's fault.

That's what Net neutrality proponents would have the public believe, anyway. On April 6, a federal appeals court nullified the FCC's censure of Internet service provider Comcast for degrading the bandwidth of some users of the BitTorrent file-sharing protocol. Since then, neutrality nuts have worked themselves into a minor panic.

Free Press, for example, is reportedly responding with a "full-court press" on the issue, which includes, among other things, an online clock counting off the days the Internet has been left "unprotected," cries from staff bloggers that we're in the midst of "a battle over the future of the Internet," and chirpy open letters pleading with FCC Chairman Julius Genachowski for increased federal regulation. The New York Times' editorial board, meanwhile, calls the current situation "untenable" and pins the blame on dear old Dubya, saying that it's all a result of "the Bush administration's predictably antiregulatory decision to define broadband Internet access as an information service…over which it has little regulatory power."

Why the freakout? Because, most agree, the court's decision in the Comcast case would likely invalidate any attempt by the FCC to regulate Net neutrality. According to longtime neutrality booster Sen. John Kerry (D-Mass.), the ruling "appears to vacate the authority of the FCC to conduct oversight over broadband service and the telephone and cable giants that own the wires." Kerry's statement may be slightly too broad, but at the very least, any attempt by the FCC to exercise regulatory authority over an ISP's network management practices—the very heart of Net neutrality regulation—would be of uncertain legality. For the FCC to push forward under the current legal regime would be to virtually guarantee legal challenges that the agency could very likely lose.

So, supporters say, it's now up to the FCC to reregulate what the Bush administration deregulated. This would entail changing the classification of broadband from an "information" service under Title I of the 1996 Communications Act to a "telecommunications" service under Title II. "Under the Bush administration, the F.C.C. deregulated high-speed Internet providers, arguing that cable Internet access was different from the kind of high-speed Internet access provided by phone companies," wrote former Obama tech adviser and University of Michigan law professor Susan Crawford in The New York Times. "It can regain its authority to pursue both network neutrality and widespread access to broadband by formally relabeling Internet access services as "telecommunications services," rather than 'information services,' as they are called now."

Already, at least one of the FCC's Commissioners, Democrat Michael Copps, is on board. "The only way the Commission can make lemonade out of this lemon of a decision is to do now what should have been done years ago: treat broadband as the telecommunications service that it is," he told The Hill.

The solution, then, seems simple: Have the FCC undo the damage done by Bush. But there are major problems with this proposal and the political narrative it employs.

The first is that the Bush administration isn't entirely to blame. The legislation in question—a 1996 modification to the Communications Act—actually originated under the Clinton administration. And the first detailed FCC inquiry into how to treat broadband was signed by Clinton's FCC Chairman, Bill Kennard, in 1998. Here's what he wrote at the time:

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."

Nor was this a strictly technical finding—the report made the case that this classification was not only legally correct but socially good. Just a few paragraphs later, Kennard warned that any "conclusion that Internet access services should be classed as 'telecommunications'" would result in "negative policy consequences."

The second problem is that the decision about how to classify broadband providers isn't merely a matter of the FCC's whim—it would entail the FCC making a decision it may not have the authority to make. According to Larry Downes, a fellow at the Stanford Law School Center for Internet & Society, "nothing in the Communications Act gives the FCC authority to decide on its own what is and what is not a telecommunications service."

Instead, notes Downes, the agency is charged with interpreting Congressional statute. And it has consistently argued, starting with Kennard's 1998 report, that the Communications Act puts at least cable broadband under Title I. Indeed, in 2005's Brand X case, it actually went to the Supreme Court to defend this interpretation. And when it did, the Court agreed with the FCC's interpretation. Shortly afterwards, it expanded upon this interpretation, pulling broadband over phone lines into the Title I mix. 

In short, reclassifying broadband under Title II would mean that the FCC is reversing more than a decade of its own legal arguments—and perhaps making a decision it has no authority to make. Yet that is what neutrality proponents are asking for, all so the Internet can have a proper regulator. Is there a threat to the Internet's future here? Yes, but it's got nothing to do with either George W. Bush or with any ISP. If the Internet needs to be saved, it's from the FCC.

Peter Suderman is an associate editor at Reason magazine.