Advocates of an open Internet have for weeks been urging the Federal Communications Commission to re-label broadband as a utility — a move toward "strong" net neutrality that would give the FCC much greater authority to ban controversial fast lanes on the Internet. Reclassification, as the proposal is called, would allow the FCC to apply the same set of strict rules to ISPs that it currently uses to govern telephone companies. (Congressional Democrats, meanwhile, have just introduced legislation to ban fast lanes outright.)
Broadband providers have long opposed the idea of greater regulation, but now they're stepping up their rhetoric against it, arguing that reclassification won't do what net neutrality advocates are hoping for — and might even threaten Internet companies such as Google and Netflix. In a nutshell, they say, if the FCC can regulate how the Internet gets delivered to you and me, what parts of the Internet can't the FCC regulate?
It's a fair question, even if the motive behind it is fundamentally self-interested. So let's unpack this a little. What we find are a lot of hypotheticals — not all of them likely to bear out.
AT&T is among the most vocal critics of reclassification. In a recent blog post, company exec Jim Cicconi argued that reclassifying Internet providers — placing them under Title II of the Communications Act instead of the more lenient Title I — wouldn't do anything to prevent the rise of Internet fast lanes, because embedded in Title II is a loophole that lets ISPs manipulate some traffic so long as it's not "unjust" or "unreasonable." If the ISPs can successfully claim that Internet fast lanes are necessary for, say, managing the load on their networks, they might be able to wriggle out of a ban on fast lanes altogether, defeating the whole point of reclassification, according to AT&T. (The company, for its part, has gone on the record saying it opposes Internet fast lanes.)
But the bigger problem, AT&T says, is that Title II would create all kinds of burdensome new requirements on content companies — the Googles and Netflixes of the world. For example, said Cicconi, Internet applications might be newly forced to pay into a "universal service fund" that the FCC keeps to connect poor and rural areas to phone service.
What do phone calls to unserved areas have to do with Internet companies? Nothing, says AT&T.
"Invoking [Title II] would risk massive collateral damage to many, if not most, U.S. Internet companies," Cicconi wrote. "Title II could turn every edge or content company into a common carrier for at least part, if not all, of their services."
Let's pause for a minute to consider what AT&T is doing here. Its rhetorical move is to raise the plight of popular companies in a bid to forestall regulation meant for itself and other slightly less popular companies.
With that in mind, net neutrality advocates don't really have a good answer for the loophole critique other than to say the FCC can simply reclassify broadband and then assert that fast lanes would be inherently unreasonable. This would surely draw a challenge from Internet providers and kickstart a legal battle over what "unjust" and "unreasonable" really mean and whether they apply in this case. The fact that Title II allows some baseline discrimination is problematic for net neutrality supporters, in general.
AT&T's other argument, meanwhile, hinges on several sequential claims. First, Cicconi says reclassification would expose content companies like Netflix to new rules. Then, he argues that those Depression-era regulations would be overly harmful to Internet-era companies. And finally, he posits that those harms will wind up suppressing innovation and the economy more broadly.
Cicconi is asking you to make a number of logical leaps. But it's not clear that you should.
Start with the premise that Title II would implicate content companies. (I'll just tackle this part for now and aim to come back to the rest later; this is a lot to digest in one go.) Cicconi told me in an interview that because Title II regulates companies that carry information from one point to another, and because Web companies like Netflix do just that when they're carrying data to Verizon's door, you could argue that Title II would apply to them, too — not just ISPs.
"It's a blunt instrument," said Cicconi. "It creates this dynamic where everybody gets caught by it. How do you distinguish [AT&T's] telephony from Skype or Google Voice? Definitionally, I think you have an issue with that."
To help make his case, Cicconi cites Supreme Court Justice Antonin Scalia.
"Scalia would conclude that every service sold over the Internet – be it access or content – has a Title II transmission component," Cicconi wrote in his blog post, calling up the justice's dissenting opinion in a landmark case known as Brand X. In other words, if a service involves transmission, then it's supposedly subject to Title II regulation, right?
But this appears to be Cicconi's extrapolation of Scalia's opinion in Brand X, not what Scalia actually said. Scalia in fact makes the opposite point: That the physical pipe carrying Internet content is a separate service from the content itself. (This is the crux of Scalia's dissent, in fact. His opinion challenged the majority, which held that the cable industry's bundle of Internet access and Internet content made it a lightly regulated Title I "information service" distinct from dial-up and DSL, which simply sold Internet access.) He reserves judgment on how to regulate the content piece, but does make clear that broadband companies who sell consumers access to the Internet can be regulated under Title II without necessarily implicating, say, e-mail providers:
The physical transmission pathway to the Internet is sold [by dial-up and DSL companies] — indeed, is legally required to be sold — separately from the Internet functionality … Customers shopping for dial-up or DSL service will not be able to use the Internet unless they get both someone to provide them with a physical connection and someone to provide them with applications and functions such as e-mail…
Contrary to Cicconi's interpretation, Scalia is arguing that there is a distinction between access and content. He goes on to say that just because a company connects to the Internet (as Netflix does) doesn't make it a telecommunications service regulable under Title II. To claim otherwise would be reductively absurd.
According to this reductio, if cable-modem-service providers are deemed to provide "telecommunications service," then so must all [Internet companies] because they all 'use' telecommunications in providing Internet functionality (by connecting to other parts of the Internet, including Internet backbone providers, for example). … This is nonsense.
What Scalia might really say here is that content applications like YouTube are designed to offer video. YouTube is not in the business of selling telecommunications service to the public, which is how the law describes Title II companies. That's the ISP's job, and so YouTube is not a telecommunications service regulable under Title II.
Title II "has a very specific focus on the means of communications, not the content of communications," said Harold Feld, senior vice president of the consumer group Public Knowledge. "All of these content-y things that crossed over the telecom network [in the past], we didn't have any problems making a distinction between the actual telecom capabilities and stuff that ran on top of it, even though it used to be that every security alarm used equipment that connected to the phone networks. That doesn't make them subject to Title II."
AT&T would probably reply that as more of our phone calls become packets of data traveling over pipes, perhaps that means Ma Bell should no longer be subject to Title II, either. Or to return to Cicconi's earlier example, applying Title II only to the voice segments of an Internet company's business might mean regulating Google Voice differently from the rest of Google, or regulating Skype differently from the rest of Microsoft. How burdensome you think that would be depends on your perspective.
If you don't buy Cicconi's initial premise about Title II extending to content companies, you don't ever reach the point where new telecom regulations are driving Google and Netflix into the ground. Reasonable people can disagree about the argument he's making. But either way, the future that Cicconi lays out seems far from guaranteed.