Net neutrality advocates are generally pleased by the Federal Communications Commission's latest plan to regulate Internet service providers, but some are pointing out potential problems.

Attorney Matt Wood, the policy director for advocacy group Free Press, told the FCC last week that it faces "legal obstacles" in how it intends to regulate Internet service providers. FCC Chairman Tom Wheeler proposes to reclassify Internet service providers as common carriers in two parts. ISPs will be common carriers in their relationships with home Internet consumers. They will also be common carriers in their business relationships with "edge providers," companies that offer services, applications, and content over the Internet.

"[B]oth the service to the end user and to the edge provider are classified under Title II [of the Communications Act]," the proposal states.

This could get the FCC in trouble, Wood argues:

On the statutory definition question, as we noted in our earlier letter, services purportedly offered to a “remote” edge provider—when there is no physical connection between that edge provider and the carrier in question—are not services offered “directly” to the edge provider according to any precedent we could find. If there is no physical connection, and thus no obvious “direct” relationship between the carrier and the remote edge provider, it is hard to imagine how the service can qualify as a telecom service under Section 153(53) of the Act. That subsection stipulates that a telecom service must be offered “directly” to the recipient. Likewise, as we also noted in our letter, even in the rare case where there is a direct interconnection with an edge provider this is likely private carriage. Such arrangements are negotiated on an individual basis with the broadband provider, not offered indiscriminately on a common carrier basis “to the public” under the same definition in subsection (53). Even if the Commission could surmount these statutory barriers, the policy question remains: why would it want to? Our November 5 letter described the seemingly absurd results that could flow from recognizing such a relationship between edge providers and end-users’ broadband providers. Would such an approach suggest or even mandate that every single end point on the Internet is a customer of each and every ISP that provides service to any other single end point on the Internet? Put more colloquially, would every website in the world become a customer of any broadband Internet access service provider whose end-users visit that website?

The FCC could establish jurisdiction over interconnection disputes without claiming that ISPs are offering a service to edge providers, Wood argued. Money disputes between ISPs and content providers can result in poor performance for consumers, he noted—this happened with Netflix on multiple ISPs for months. Net neutrality rules designed to protect Internet users should thus allow the FCC to intervene in interconnection battles that harm traffic to end users, Wood wrote.

"Broadband users deserve access to the content, services and applications of their choosing, and they deserve access to such data at the speeds for which those end-users are paying," Wood wrote. "If the Commission’s rules in this proceeding are intended to prevent broadband Internet access service providers’ blocking, degrading or impairing the delivery of such traffic as sent and received by Internet users, then the rules should clearly prevent the imposition of such access charges—even in the guise of 'interconnection fees'—along with other harmful conduct at the interconnection point with a broadband Internet access service provider’s last-mile network."

The FCC's previous net neutrality rules were thrown out in court when judges ruled that the commission imposed per se common carrier regulations without first reclassifying broadband as a common carrier service. That, plus prodding from President Obama and public support for stronger net neutrality rules, helped convince Wheeler to use Title II.

Hey FCC, make a decision on VoIP

Another concern was raised in a filing by the National Association of Regulatory Utility Commissioners (NARUC).

NARUC said it supports "whatever legal rationale the Commission adopts to support imposition of net neutrality principles," meaning that the group does not object to reclassifying broadband providers as common carriers.

But NARUC wants to make sure the FCC doesn't rule out the possibility of reclassifying Voice over Internet Protocol phone systems offered by Internet providers. The FCC has never firmly classified VoIP as either a common carrier service or not, and the FCC's net neutrality proposal has a carve-out for VoIP.

"Some data services do not go over the public Internet, and therefore are not 'broadband Internet access' services subject to Title II oversight (VoIP from a cable system is an example, as is a dedicated heart-monitoring service)," the proposal states.

NARUC worries that industry groups will point to this in their argument that VoIP is a lightly regulated "information service" instead of a more heavily regulated telecommunications service.

"It is true... that, however classified, both VoIP and a dedicated heart monitoring service, are not in any sense 'broadband internet access,'" NARUC wrote. "Unfortunately, an opposite inference can be drawn from the cited text."

VoIP's classification isn't directly related to net neutrality but will become important over the next few years as telephone companies like AT&T and Verizon shift customers from circuit switched landlines to IP voice systems. The old phones are regulated as telecommunications services under Title II, while VoIP so far has escaped strict regulation.

NARUC asked the FCC to clarify that a telecommunications service such as voice should be regulated as telecommunications regardless of what underlying technology powers it. "Failing that, the FCC should clarify the cited text to make clear that the Agency is not attempting to change the classification of VoIP services to information services," NARUC wrote.

Essentially, NARUC wants the FCC to impose common carrier rules on VoIP providers right now, or at least not prevent itself from doing so in the future.