In the next few weeks, a series of events will occur in U.S. Congress and the Federal Communications Commission (FCC) that will affect the way every person in the United States interacts with the internet. The FCC will determine if internet service providers (ISPs) fall under a particular aspect of telecommunications law known as Title II, a part of the Communications Law of 1934 that deals with regulating aspects of communication-focused companies it identifies as "Common Carriers."
Currently, ISPs are defined by the law as an "information service" which transports information/data, rather than electrical-based signals. They aren't affected by the various protocols of telecommunications. However, as the internet spread to the various corners of the world and was used more and more by Americans, the service began to look more like a telecommunications service, which the government has traditionally considered any kind of information transferred via electrical waves across a distance.
All that means that regulating the internet has become fair game in the eyes of some lawmakers and the FCC.
If the Feb. 26 meetings go the way that the FCC wants it to, ISPs will be redefined as "telecommunication service providers" and will thus be regulated by all the laws and restrictions that Title II entails. In particular, this would prohibit ISPs from manipulating their internet connections to boost revenues. The most notable example of that is the idea of "throttling," the practice of intentionally slowing the data transfer speeds of certain companies and websites unless and until they pay an additional fee.
But why does the FCC care whether ISPs create or restrict routes along the information highway?
The FCC is an active advocate for an "open internet," which the commission defines as "a level playing field where consumers can make their own choices about what applications and services to use."
According to Tim Wu of The New Yorker, the FCC can protect the open internet in one of two ways: Title II, or with what Wu describes as auxiliary methods, such as adding a non-discrimination element to older policies that would prevent an ISP from blocking certain kinds of information.
The previous FCC chairman, Julius Genachowski, relied mainly on these auxiliary methods. However, when a federal court struck down certain aspects of the FCC Open Internet Order of 2010, the auxiliary methods were no longer a viable method for maintaining an open internet.
Even while auxiliary methods did fail, they opened doors for the FCC's 5-person staff to write and explore some new legal options. The two main options are Title II and Section 706 of the Telecommunications Act of 1996. Section 706 is a small piece of text that would allow the FCC to regulate ISPs to "promote competition in the local telecommunications market" and "remove barriers to infrastructure."
However, the text is less than two paragraphs, which isn't necessarily enough to protect the open internet from ISPs choosing to control the flow. Many telecom analysts feel the law wouldn't sufficiently account for everything that the protection of net neutrality would require. Hence, most open internet activists are fighting for Title II.
While Title II appears to be a better decision than Section 706, it isn't perfect. According to Internet Innovation Alliance's Jamal Simmons, regulating ISPs as a telecommunication service provider would end up adding additional taxes and tariffs to normal costs. Simmons expects that the re-categorization would end up adding between $54 and $85 to the average bill. Simmons is worried that adding such prices will encourage people to abandon their broadband (in the way that higher taxes on cigarettes discouraged smokers from paying for cigarettes), which is why Simmons would rather support enacting Section 706 over Title II.
There's also the option of adopting the Republican bill presented by Sen. John Thune. This bill would enable net neutrality but would abandon the Title II reclassification and give Congress, not the FCC, the power over net neutrality, which is in accordance with the Constitution and the current trend of representatives taking back power from unreachable (by voters) bureaucratic agencies. Many Title II activists believe that this bill will turn the open internet into something that Democrats and Republicans can debate and amend in Congress if they desire. But Susan Crawford also notes that the bill would take most of the FCC's power away, making it impossible for it to respond to any potential threats to net neutrality.
President Barack Obama's plan for net neutrality seems to want to balance the consequences of Title II with allowing ISPs to flourish as businesses. However, the plan doesn't touch on whether it would increase tax costs or how it would affect the power structure behind the ISPs and the FCC.
It's clear that resolving the issues of net neutrality will come at a cost regardless of whether the FCC decides to reclassify ISPs or if the Republican bill is passed and implemented before the FCC meeting. It's possible that Section 706 could be used in the near future, but it is highly unlikely. For now, citizens need to make sure they understand the full consequences of any and all bills.
