The FCC's vote to remove Title II classification from the internet definitely changes the discussion, but it doesn't instantly kill the ability to promote openness.
The partially-filled FCC (only three of five seats are occupied) voted 2-1 along party lines to advance the Restoring Internet Freedom (RIF) proposal, effectively overturning President Obama's 2015 Open Internet Order that classified ISPs as Title II common carriers.
The RIF proposal cites its authority to regulate ISPs under section 706 of the 1996 Telecommunications Act instead of under Title II. Eliminating Title II classification shifts ISPs back to Title I, which classifies ISPs as information services, not telecommunication services.
Confused yet? The distinction between the two is baffling at first glance, but is actually fairly simple. Information services, according to Title I, facilitate in the creation, retrieval, storing, and otherwise manipulating data—think Google.
Title II common carriers, on the other hand, simply move items or information from place to place without actually owning it. The argument for Title II classification of ISPs is that they don't transport anything they own, rather they move someone else's information for them.
SEE: Net neutrality: The smart person's guide (TechRepublic)
Information services classified in Title I, however, offer the capability for generating, storing, retrieving, and otherwise manipulating data. Google and other companies like it are commonly considered information services, but the wording in Title I is vague enough that ISPs can be classified in the same way. Until 2015 they were, and now they are again, which means the FCC has far less oversight into their activities.
Before you assume the worst, however, it's a good idea to understand just what today's vote has done. Changing the classification of the internet from a utility into an information service doesn't mean the end for net neutrality, at least not according to Carnegie Mellon professor Jon Peha.
What internet classification means (and what it doesn't)
The net neutrality argument, Peha says, conflates two very different things: policy and legal authority. Legal authority, he says, is what the FCC uses to determine how the can enforce net neutrality rules—think Title II or section 706. Policy, on the other hand, is what the government actually chooses to do or not do, and that could be anything.
SEE: FCC's Open Internet rules won't end the net neutrality debate in the US (TechRepublic)
The Obama administration, for example, chose to regulate the internet as a Title II common carrier, which means it's classified as a telecom utility. However, they selectively applied rules pertaining to common carriers, which allow the government to set rates and impose other restrictions, which Peha says Obama's FCC simply didn't do.
Turning ISPs into section 706 information services doesn't mean the internet will instantly become a fastlane-ridden, data-throttled throttled stagnant wasteland: It's all about how the FCC chooses to proceed under the new rules.
The future of internet regulation
FCC Chairman Ajit Pai has called for "light touch regulation," which, while vague, is made clearer by putting it in context of Pai's other statements and documentation surrounding the RIF proposal.
"For almost twenty years," the introduction to the RIF fact sheet states, "the Internet flourished under a light-touch regulatory approach. During this time, the Internet underwent rapid, and unprecedented, growth."
But is it fair to compare the early gold rush days of the internet—an era in which it was superfluous to daily life—to the constant connection most of us live with now? Peha doesn't think so.
"The law is clear that internet access, as provided in 2017, is a telecommunication service," he said, and not an information service. The data being moved by ISPs isn't owned by them, and by classifying ISPs as Title I information services the FCC gives them de facto control over that data, letting them move it as fast—or as slow—as they want.
We aren't in uncharted legal authority or policy territory, so there isn't reason to worry about that yet. What is a concern, however, is treating the internet of 2017 like the internet of 1996. It's a completely different animal that needs completely different regulation.
The three big takeaways for TechRepublic readers:
- The FCC voted today to proceed with a rollback of Obama-era net neutrality regulations.
- The plan involves reclassifying the internet as a Title I information service, which gives ISPs much more liberty to control traffic.
- Reclassification doesn't mean that net neutrality will cease to be—the government has selectively applied internet regulation in the past and may continue to do so.
- A Trump presidency could mean trouble for net neutrality rules (TechRepublic)
- FCC chairman launches process to reverse net neutrality rules (ZDNET)
- Your internet history is now for sale. Here's how you can protect it (TechRepublic)
- Federal court to revisit FTC's throttling case against AT&T (ZDNET)
- Net neutrality rules all but doomed as FCC starts teardown (CNET)