Post Net Neutrality Reliability Rather Than Rainbows: Why Strong Title II Remains the Best Option For an Open Internet

Earlier this week, the Federal Communications Commission (FCC) published a blog post describing the “rainbow of policy and legal options” available to protect the open Internet, contrasting them to other “monochromatic options.” Reading this blog post reminded me of the quote apocryphally (and incorrectly) attributed to Winston Churchill: “Americans will always do the right thing – after exhausting all the other alternatives.” While I applaud the FCC moving in the right direction on policy, I hope the FCC does not exhaust itself chasing the policy rainbow when the right thing – drab and monochromatic as it might be – continues to stare them in the face.

On the positive side, the FCC’s blog post reflects an understanding that the FCC’s original proposal from May, permitting paid prioritization (aka “Fast Lanes”) under a ‘commercial reasonableness’ standard will not do the job of protecting the open Internet. The political reality has also shifted, thanks to a tremendous public outcry in favor of recognizing that broadband is the essential service of the 21st Century, a fundamental service that everyone increasingly relies on and therefore – to use the legal expression – is affected with the public interest. Wheeler’s own writing on the network compact likewise recognizes this fundamental principle, which has made his resistance to embracing Title II and insistence on exhausting all other option all the more frustrating.

Judging by the FCC’s blog post, we have made progress since May. Title II has gone from a reluctant inclusion in response to public outcry to something “very much on the table.” But the FCC continues to look for something that will spare it the embarrassment of admitting the agency went down the wrong path ten years ago when it reclassified broadband as a Title I information service, and continues to be distracted by its bright shiny new Section 706 authority.

We Need Reliable Rules, Not Colorful Gimmicks

The FCC points to two sets of principles, one submitted by the Center for Democracy and Technology (CDT) and the other from a coalition of Library Associations and Higher Education Organizations, that could replace the “commercial reasonableness” standard initially proposed by the Commission. Public Knowledge agrees with the principles outlined in both sets of comments (both of which, incidentally, favor reclassification of broadband as Title II telecommunications service). But principles, without a solid basis of authority, cannot adequately protect the public.

The FCC blog post also points to filings by AT&T recommending an approach based solely on Section 706. Setting aside our overall concern that AT&T’s proposal continues to lack critical details, we do not believe an approach based purely on Section 706 can work because of the “common carrier prohibition.” As we have explained since the D.C. Circuit issued its net neutrality decision last January, the “common carrier prohibition” makes it impossible for the FCC to ban any specific practice (like blocking or discriminating) because that would amount to “treating all traffic the same” and thus violate the “common carrier prohibition” that prevents the FCC from treating a Title I information service provider like a Title II telecommunications service provider. The more effective a rule gets at banning a specific practice, or limiting the ability of carriers to discriminate between different types of content and applications, the more likely the rule is to get struck down – either now or when the FCC tries to apply it.

To avoid this common carrier prohibition, AT&T proposes leaving carriers sufficient “flexibility” so that a ban on paid prioritization does not mandate treating all traffic equally. Or, in other words, any rule under Section 706 must have sufficient loopholes to defeat the very purpose of having a rule – preventing broadband access providers from picking winners and losers. It does no good to ban a specific practice like paid prioritization if doing so creates new ways for carriers to favor some content or applications over others.

Other Flavors of Title II Carry Greater Risk For No Reward.

The FCC points to other proposals that either classify broadband as Title II and then rely on Section 706 for the actual rulemaking authority – so called “hybrid” proposals, or which classify one part of the Internet traffic as Title II but leave the “last mile” between the subscriber and the broadband access provider as a Title I information service (see here and here). These proposals do address the common carrier prohibition, but they come with problems of their own.

First and foremost, relying on either a hybrid approach that classifies broadband access as Title II but uses Section 706 authority for actual rules, or relying on classifying the “sender side” of broadband (the part from an edge provider to the broadband access provider) as a telecommunications service while leaving the residential subscriber side an information service, shifts the focus away from protecting the public to promoting competition and investment. Certainly consumers benefit from competition, and from stimulating investment in broadband infrastructure and deployment (the purpose of Section 706). But Title II is not just about promoting investment or protecting competition. It is primarily a consumer protection statute, and contains many provisions specifically targeted at protecting consumers from corporate abuses, such protecting consumer privacy and truth-in-billing.

We do not want the basic service of the 21st Century managed for the benefit of companies – wherever they reside in the Internet supply chain – with the expectation that benefits to the public will somehow ‘trickle down’ from the right set of business oriented rules. A foundation that starts with the companies and moves backward to consumers starts in the wrong place.

Furthermore, because the various “hybrid” and “sender side” approaches are complex and untested, they invite carriers to play games and find loopholes. But it is unclear what benefit this added complexity and associated risk provides, other than allowing the FCC to avoid the embarrassment of admitting that 10 years ago it made a mistake when it decided to deregulate broadband by reclassifying it as an information service. Like the motorist who would rather stay lost rather than ask for directions, the Commission’s refusal to simply reverse its previous mistake threatens to take our future broadband policy in the wrong direction.

Conclusion

To repeat, it is a good thing to see the FCC moving in the right direction. But there is no need to go chasing a “rainbow” of options when the most effective way to protect the open Internet is sitting right in front of us. It may be all boring and “monochromatic,” but sometimes reality is like that. It is time for the FCC to admit there is no pot of gold at the end of the policy rainbow. And, having exhausted every other alternative, the FCC should do the right thing and classify broadband as a Title II service.

About Harold Feld

Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” (Public Knowledge & Roosevelt Institute 2019) a guide on what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Circuit Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”