What Does Network Neutrality Look Like Today?
What Does Network Neutrality Look Like Today?
What Does Network Neutrality Look Like Today?

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    Sometimes the conventional wisdom turns
    out to be correct. As we observed
    after the oral argument in September
    , the Court seemed likely to approve
    the FCC’s general assertion of authority over broadband providers under one provision of the
    Communications Act
    , while reversing the no blocking and non-discrimination
    rules – the actual important part of Network Neutrality – as contradicting
    other statutory language. As it turned out, that’s what happened.

    The result creates a bizarre set of
    contradictions within the Court’s decision. On the one hand, the majority of the court finds that the FCC
    properly found that the current openness of the Internet is critically
    important to protecting subscribers and fostering innovation (pages 33-44). On
    the other hand, the Court found that because the FCC insists on classifying all
    broadband service as a Title I “Information Service” rather than as a Title II
    “Telecommunications Service,” the Commission is powerless to act on these
    findings (pages 45-62). (For those unclear on the distinction between Title I
    Information Service and title II Telecommunications Service, you can see this refresher here.)
    The FCC now has confirmed “affirmative authority to enact measures encouraging
    the deployment of broadband infrastructure” and “to promulgate rules governing
    broadband providers’ treatment of Internet traffic,” provided the FCC allows
    broadband providers to offer preferential treatment to some and block others.

    To illustrate with some examples,
    the FCC could, conceivably, decide that AT&T’s current “sponsored data
    ” discourages broadband use, hampers innovation or otherwise
    frustrates the goals of ensuring rapid deployment of “advanced
    telecommunications capabilities to all Americans,” and could order AT&T to
    stop or modify the program accordingly. But the FCC cannot set a rule in
    advance that would prevent AT&T from experimenting with such deals. The FCC
    can require Verizon to negotiate
    peering with Cogent
    or could require broadband providers to offer interconnection
    to things like Netflix’s
    content delivery network
    under rules similar
    to the data roaming rules the D.C. Circuit approved last summer
    , but it
    cannot require that Verizon complete a call from Magic Jack to a Digital Voice

    How Did We Get To This Result That Makes No Sense?

    As the Court makes clear, and as
    Public Knowledge has consistently warned, this confusing and contradictory
    result – at once overly broad and severely limited – is a contradiction of the
    FCC’s own making. As the Court recounts in painstaking detail, the FCC used to
    sensibly treat the business of moving bits as a Title II telecommunications
    service (pages 7-10). Then the FCC changed its mind and classified broadband
    access as a Title I “Information Service.” “Despite calls to revisit these
    classification orders,” observed the Court, “the Commission has yet to overrule

    In other words, the FCC has a
    choice (and still does) whether to put broadband in the Title I “Information
    Services” box or the Title II “Phone Services/Telecommunications” box. Once you
    put something in the “Information Service” box, you cannot treat it as if it
    were in the “Phone Services/Telecommunications” box. The FCC can always decide which
    box to use, and can always change its mind about whether something
    belongs in the Title I box or the Title II box. But it can’t pretend something
    in the Title I box is in the Title II box.

    While I don’t necessarily agree
    that this is the right way (or even the logical way) to read the statute, it
    does have a certain consistency of appeal. “FCC,” the Court says, “stop trying
    to be so clever and do your job. Either broadband providers are like cable
    operators, picking and choosing what content and what applications to offer
    users in whatever bundles or under whatever conditions they please; or they are
    like phone systems that offer to complete a phone call to anyone at the other
    end of the ten-digit phone number. But they can’t be both at the same time.
    Make your choice and live with the consequences.”

    Net Neutrality As It Exists Right Now.  

    So what’s the state of the world at
    the end of the day yesterday? The FCC’s rules requiring broadband providers to
    disclose their network management practices remain intact and in force.
    Providers are free to strike whatever deals they want or block whoever they
    want – a situation the Court found does indeed endanger the “virtuous cycle of
    innovation” that has powered the Internet until now. Unless the FCC
    reclassifies broadband access as Title II telecommunications services, however,
    the FCC cannot really do anything about it directly.

    This doesn’t make the FCC entirely
    helpless. But it does mean that the best the FCC can hope for, absent
    reclassifying broadband as Title II, is possibly a sort of “Net
    Neutrality-lite” that looks remarkably like what we had in 2008 — a complaint
    process based on Open Internet principles. As folks may recall, no one
    particularly liked that because it created all sorts of uncertainty as to what
    conduct would or wouldn’t be allowed and how far the FCC’s authority would
    reach. Every new business model becomes the possible subject of a complaint,
    and every complaint becomes a crap shoot because the FCC cannot actually impose
    a rule. 

    But apparently, “certainty” is for
    wussies in Telecom-ville. Welcome to the dynamic crazy town of Information
    Services Land! Who knows what anyone will do, who it might hurt, or what the
    FCC might do in response? Let the wackiness ensue and the good times roll.

    Unless, as the Court suggests, the
    FCC would like to revisit its classification decision.