Court Decision Could Lead FCC to Redefine Internet

A good day in court for Internet providers may lead regulators to a nuclear option those providers dread.
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A federal appeals court in D.C. earlier this week threw up a roadblock to the Federal Communications Commission's plans for the future of the Internet in America. The details of the case were relatively straight-forward: Comcast was caught interfering with traffic by customers using the cumbersome file-sharing application BitTorrent, flouting a 2005 FCC Internet policy stating that Web users are entitled to access the content and applications of their choice.

The FCC tried to sanction Comcast. Comcast sued. And on Tuesday — to the surprise of no one who has been following the case — the court ruled that the FCC doesn't actually have the authority to enforce its Internet policy.

At stake now is not just that 2005 document, but also the future role of the FCC in regulating the Internet, the FCC's ambitious national broadband plan, released just last month, and the very idea of how the Internet should be classified and controlled in the U.S.

"A lot of what the FCC was trying to do, both with respect to net neutrality and to the broadband plan, is now in danger," said Barbara van Schewick, director of Stanford Law School's Center for Internet and Society. With two other professors and several advocacy groups, van Schewick filed a 2007 petition alongside the initial complaint against Comcast urging the FCC to clarify its Internet policy (and, more specifically, that Comcast's behavior constituted a violation of it).

"Moving forward without clear authority would be a gamble — every single time the FCC wanted to do something regarding the Internet, it would have to go to court and show that it has ancillary jurisdiction," she said, referring to the legal test the FCC failed this week. "And that has just become a lot more difficult."

THE IDEA LOBBYMiller-McCune's Washington correspondent Emily Badger follows the ideas informing, explaining and influencing government, from the local think tank circuit to academic research that shapes D.C. policy from afar.

THE IDEA LOBBY
Miller-McCune's Washington correspondent Emily Badger follows the ideas informing, explaining and influencing government, from the local think tank circuit to academic research that shapes D.C. policy from afar.

The FCC now has three options. Congress could grant it the explicit authority over the Internet the courts currently say it doesn't have. Congress could outright enact its own net neutrality laws (the least likely scenario, given hefty opposition from the well-financed telecom lobby). Or the FCC, by a majority of its five commissioners, could reclassify the Internet from an "information service" to a "telecommunication service," opening it up to the much more stringent regulatory regime already in place, for example, around telephone services in the U.S.

The last option certainly sounds simplest.

"It's also the option the network providers hate most," van Schewick explained. "They have already started to frame this as a bad option, saying, 'The FCC will try to regulate Internet services like traditional telephony. This is heavy-handed regulation that is totally unsuitable.'"

The FCC, in fact, would be required to abandon any regulations that don't logically apply to the Internet. But one game-changing rule would apply: Network providers would have to offer open access to their infrastructure. Independent ISPs, for example, would be allowed to use Comcast's network of "pipes."

If you can recall dial-up Internet days, van Schewick says, you may remember that you had any number of options for Internet service providers. The ISP sold by your telephone company was just one of them.

"Whereas today, where I live, the only choice I have is between the Comcast ISP service and the AT&T ISP service. There's no independent option," she said. "The only way to actually get this would be to force network providers to let independent ISPs on their network. This is a separate policy debate that's really important."

Net neutrality refers to the concept that network providers should not be able to discriminate among the information that moves through the system (whether that means loading Comcast's home page, YouTube, or a Google search). Open access, on the other hand, would mean any ISP should have access to that system, whether parts of it were physically built and owned by Comcast or AT&T.

To take a step back: If the Internet today is not classified by the FCC in a way that treats it like a telecom service, what are we treating it like? The answer, van Schewick says, is that we treat the Internet like Facebook, or gmail, like an individual application.

The analogy produces a certain cognitive dissonance, like equating cars with roads, and it hints at policymakers' underlying challenge in defining the fundamental nature of a relatively new technology.

"There is an important difference," van Schewick suggested, "between the Internet as a general platform that is used by applications, and the applications themselves. The Internet is a basic infrastructure, like the electricity network, or the roads. We usually treat the electricity network different from toasters."

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