What Title II Regulation of the Internet Actually Means

There is a great deal of discussion today about empowering the FCC to regulate internet services providers as if they were public utilities. Supporters of Net Neutrality tend to think this is a good idea, because they fear that ISPs will give discriminatory access to bandwidth, creating a so-called “internet fast lane” for companies with enough capital to pay.

The solution, many argue, is to classify the internet as a “common carrier” under Title II of the Federal Communication Act of 1934. The following is an extract from the FCC’s proposed rule.

In a series of decisions beginning in 2002, the Commission has classified broadband Internet access service offered over cable modem, DSL and other wireline facilities, wireless facilities, and power lines as an information service, which is not subject to Title II and cannot be regulated as common carrier service.

In 2010, following the D.C. Circuit’s Comcast decision, the Commission issued a Notice of Inquiry that, among other things, asked whether the Commission should revisit these decisions and classify a telecommunications component service of wired broadband Internet access service as a “telecommunications service.” The Commission also asked whether it should similarly alter its approach to wireless broadband Internet access service, noting that section requires that wireless services that meet the definition of “commercial mobile service” be regulated as common carriers under Title II.

It all sounds very tidy and official. But how many supporters of this proposal have actually taken time to read the law to which they want to subject the internet – a law, it will be remembered, that was passed decades before anyone had even so much as dreamt the first hazy dream of microchips, email, and the kind of global communication network the internet would one day become?

A close reading of the actual law reveals just how dangerous this proposal is, and how much power it would grant the FCC. The entire law is 333 pages long, but let’s examine a few choice sections so that we may get a glimpse of what is actually being proposed, away from the fog of overly general rhetoric that too often influences public opinion.

Section 201:

It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request therefor; and, in accordance with the orders of the Commission, in cases where the Commission, after opportunity for …read more    

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