The revolving door in Washington, DC, allows lobbyists to become regulators and vice versa, and there may be no better example than the Federal Communications Commission.

FCC Chairman Tom Wheeler (a Democrat) is the former CEO of the cable industry's top lobbying group, while the current head of the cable lobby—Republican Michael Powell—used to be the FCC chairman. Though they have held the same jobs, Wheeler and Powell are at odds over how to regulate Internet service, with Powell, as CEO of the National Cable & Telecommunications Association (NCTA), leading the charge against his former agency.

More than a decade ago, Powell as FCC chairman ensured that broadband providers would not be regulated as common carriers, a decision that Wheeler essentially reversed this year when the FCC reclassified broadband as common carriage in order to impose net neutrality rules. Wheeler, CEO of the NCTA from 1979 to 1984 and of the CTIA Wireless Association from 1992 to 2004, went against his former employers' wishes.

The NCTA today sued to overturn the FCC's decision; so have AT&T, the CTIA, American Cable Association, and USTelecom.

Powell explained the NCTA's opposition in a blog post and in a phone call with reporters. He said the NCTA isn't opposed to net neutrality rules but does not want its members to be treated as common carriers. The distinction hinges on how Internet service is defined. If Internet service is "telecommunications," then broadband providers are common carriers and are regulated under Title II of the Communications Act, which is also used to regulate wireline telephone service and mobile voice. But if Internet service is instead an "information service," then broadband providers don't have to abide by Title II rules that forbid unjust and unreasonable rates and practices.

"We believe Congress fully understood what the Internet was when it adopted the Telecom Act of 1996, and certainly had the expectation and we believe clearly set out in law that it was not to be subjected to Title II common carrier regulations, a distinction the commission has now clearly erased," Powell told reporters. The FCC's ruling "fundamentally makes everything telephone service," he said.

The Internet is more than a telephone

Powell used the phrases "telephone service" and "telecommunications" interchangeably, saying the FCC under Wheeler has reclassified broadband as "telephone service," without noting that Congress' definition of telecommunications goes well beyond phone calling. Telecommunications, according to the Telecommunications Act of 1996, is "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received."

Congress went on to define "advanced telecommunications capability," what the FCC today calls broadband Internet service. Advanced telecommunications is "high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology," Congress said.

The FCC under Wheeler determined that Internet service is telecommunications, and thus subject to Title II rules. Wheeler has said he expected lawsuits but that he believes the decision will survive judicial scrutiny.

Congress defined an information service as "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications." Congress said this "includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service."

Congress did not say whether the Internet access purchased by consumers should be treated as telecommunications or an information service, but Powell believes the proper classification is obvious.

"The services our companies provide allow you to generate content on a webpage, acquire photos on Instagram, store data in the cloud services, retrieve files from Dropbox, utilize playlists on Spotify, and make available videos on YouTube," he said.

Back in 2002, the Powell-led commission classified cable modem service as an information service. DSL Internet providers were still treated as common carriers and forced to sell network access to rivals, allowing other companies to offer Internet service over the same DSL lines. But DSL was reclassified as an information service in 2005 under Powell's successor, Chairman Kevin Martin.

"The question before the commission when I was chairman was, as cable companies began to offer a service called cable modem service, did or did it not have attributes of the definition that congress set out in 'information service,'" Powell said today. "We said a faithful understanding of what cable modem service is is that it constitutes an information service rather than a telephone service under the law, and that’s the definition the Supreme Court upheld."

Powell pointed out that the NCTA did not sue the FCC in 2010 when it issued an earlier set of net neutrality rules that did not rely on Title II. Verizon challenged that order and won the case, but the victory backfired for Internet providers. A federal appeals court ruled that the FCC could not impose the net neutrality restrictions without first reclassifying broadband as a common carrier service. Wheeler's two main options were to impose weaker rules or reclassify broadband; he did the latter.

Wheeler's rules prevent Internet providers from blocking or discriminating against online content and go into effect in mid-June.

The lawsuit the NCTA filed does not reveal the organization's entire legal rationale, as detailed briefs are expected to be filed this summer. Powell said the NCTA is considering whether to ask for a stay that would prevent the rules from taking effect, but noted that "stays are difficult to obtain."

Powell expects that "it's probably going to take a number of years before this is fully resolved."