In a continuing wave of government competence, the Federal Communications Commission has announced that it has developed a new way to finally regulate the Internet in the name of net neutrality. Net neutrality, for the uninitiated, is the belief that access to the internet and the content you view on it cannot be regulated by anyone. Not the government, not your ISP, and most certainly by no special interests groups. The most recent battle of Net Neutrality was the FCC’s legal battle against Comcast. The cable company was charged with throttling or plainly restricting access to P2P networks like BitTorrent. Comcast argued that the traffic was mostly used for illegal means and was slowing access for other customers by hogging bandwidth. The FCC retaliated by serving an injunction against the company on the grounds of restricting consumers’ unrestricted access to the web per the FCC’s charter. Comcast sued the FCC, stating that in their charter they have no right to regulate Broadband access in this way. The US Supreme Court concurred with that assessment.
See, under the Communications Act, Broadband Internet is a Tier 1 “information service”, which means that the FCC cannot have direct regulation over providers but instead has “ancillary authority” to intervene whenever a company clearly violates the FCC’s charter from Congress. Besides from that, the FCC doesn’t have any way to regulate the Internet, which is just how they want it since that maintains maximum consumer freedom and maintains competition in a free market. For the FCC to properly regulate against Comcast without question, they would have to reclassify broadband as a Tier 2 “telecommunications service” like landlines and wireless services. This allows complete regulation (because of the phone industry’s history of monopoly) but limits the inherent need for the internet to be a place of easy access for consumers and prospective providers. Since the FCC has been pushing open and free access to the Internet with their National Broadband Plan, switching the Internet to Tier 2 regulation would be a huge move of hypocrisy. Instead, the FCC has published a lovely and concise paper today outlining “The Third Way”; a revolutionary new plan that will separate the Internet into two separate entities to be regulated differently. For the first time, access and content will be separate.
Under the new provision, the FCC will have direct authority only over the transmission of broadband internet, it will be treated as a telecommunications service and then only regulated by a sub-set of the Tier 2 regulations in existence. The FCC believes that doing this will rule out any legal uncertainty for what is appropriate, fair, and equal access to internet services while protecting consumers. These regulations are only meant to enforce, not enhance, current regulations that exist for ISP services so that ISPs do not find massive amounts of additional regulations to contend with in the future. In fact, the only provisions to be enforced will be those that the FCC believed they could enforce before the Comcast case, so nothing will really change except now the FCC can fully enforce those rules. While transmission will have direct control, content and data on the internet will remain a Tier 1 service and remain in the FCC’s ancillary control instead of direct control. This will maintain free access and complete hands-off regulation of information.
I, for one, applaud the FCC again for taking an active but limited role in the regulation of internet services for the purpose of maintaining consumer security. Net neutrality is an extremely important topic to me, and this decision will be a great stride forward in protecting that goal. Be certain, this clear distinction between transmission and data will effect us for decades and once the Third Way passes vote in the Commission, I will have a sigh of relief knowing there is greater oversight in my access to the internet, but not what I access.
The Commissioner’s report can be found here.