McAdams On: Reclassifying Broadband

The FCC has come up with a middle way for regulating broadband. The stuff on the Internet would remain a Title I information service. The network that carries the stuff would be regulated as a Title II telecommunications service. This would give the commission more legal leverage to enforce network neutrality. It could tell Comcast to stop throttling bandwidth hogs, and make it stick.

Broadband is currently classified as a Title I information service. Legally, an “offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, [including] electronic publishing, but [not including] any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.”

The FCC can regulate Title I service “reasonably ancillary to the effective performance” of its responsibilities. That sounds like a wide berth, but it’s just the opposite. It places the burden of proof on the commission, which recently failed to convince a federal court of its authority to tell Comcast to stop throttling.

Title I doesn’t cover the wires. Title II does. By legal definition, it’s “a means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.” Title II rules now apply to “common carriers,” which are, for the most part, phone companies. Under Title II, the FCC can compel common carriers to provide service free of “unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services.”

The carrier has a little more to prove in this case. The FCC is proposing to leave the Internet “generally unregulated under Title I,” and “identify the Internet connectivity service that is offered as part of wired broadband Internet service as a telecommunications service.”

This seems to keep the government out of the content business, where no one wants it; and dealing strictly with infrastructural procedures. Prima facie, a seemingly logical compromise. Except for what Comcast did--and what’s driving the FCC’s intention to reclassify broadband--was all about content. It was about peer-to-peer traffic, something germinal in 2002 when broadband was deemed a Title I service. Two years later, it was kudzu-like, the largest contributor of Internet traffic. Certainly peer-to-peer is a method of file exchange and arguably content neutral, yet certain types of content are generally associated with the method--video and audio, particularly.

Additionally, broadband networks aren’t comparable to common carrier networks in that the traffic will continue to increase. Common carriers trade in voice. Broadband network providers deal with an exploding range of services encompassing voice, video, audio, remote control, 3D, virtual animatronics, commerce, gaming, warfare, and a million things we haven’t yet thought of. Those million things will be entirely dependent on companies willing to continually upgrade their networks. It’s unlikely for that to happen philanthropically.

Reclassifying broadband could easily be counterproductive to the fed’s goal of creating nationwide connectivity, unless it’s to be entirely taxpayer funded. Let’s see how that goes over. Only one thing is certain if the FCC elects to reclassify broadband service. It will wind up back in court.