The decision by the FCC on a partisan vote to reclassify the Internet as a pure information service, placing it again under Title I of the Telecommunications Act (as amended in 1996), has a number of potentially undesirable side effects.
In December, a number of Internet pioneers including myself and Marconi Fellows Sir Tim Berners-Lee, Whitfield Diffie, Martin E. Hellman and Ronald Rivest, wrote an open letter to the FCC requesting that the group cancel its vote on net neutrality in order to evaluate input from experts in the field about the technical flaws in the proposed Order. The FCC ignored our request, triggering potential regulatory, as well as technical issues.
From a regulatory perspective, the reclassification to Title I takes away any basis for successful enforcement of net neutrality principles by the FCC. An earlier Supreme Court ruling demonstrated that the FCC needs a legislated basis for taking enforcement actions and Title I refers to unregulated services. While the Internet Service Providers may not take advantage of the demise of enforceable net neutrality, there is always a risk that some may adopt discriminatory or
anti-competitive
business practices.
On the other side, there were concerns about the use of Title II (telecommunications) in the Telecom Act to enforce net neutrality. There are many provisions in Title II that the FCC refrained from enforcing because they were not germane to net neutrality and those provisions might be invoked by subsequent FCCs. This is not an idle concern as we have just seen a change in FCC leadership lead to the reversal of a previous FCC ruling taking Internet from Title I to Title II.
A third potential outcome of this most recent FCC decision may be legislation leading to a new "Internet" Title in the Telecom Act that could solidify net neutrality principles in an enforceable framework that does not risk the application of inappropriate elements of Title II. While we still do not know exactly what this title will entail, it looks like a promising alternative because it would be designed with the Internet in mind. There is, however, an alternative outcome in which the legislation takes jurisdiction for Internet from the FCC and places it in the Federal Trade Commission where, in theory, anti-competitive behaviors would be dealt with. It is not clear whether such an outcome would protect the interest of users satisfactorily.
There is also a move underway to review the FCC reclassification action using a relatively old provision in law called the Congressional Review Act that would allow the Congress to reconsider the FCC action.
If you are as concerned as I am about the future of the Internet, I urge you to contact your elected representative and ask them to support an open Internet.
In addition, last week a number of parties, including Mozilla, The Open Internet Institute, and the states of California, Kentucky, Maryland, Massachusetts, Oregon and the District of Columbia entered the fray with lawsuits against the FCC's order. This week, the Governor of Montana signed an order making the state the first to implement net neutrality after the FCC repeal.
My conclusion: this story is not yet over.
Vint
This is a personal opinion, not the position or opinion of the Marconi Society.
