Debates about Title II of the Communications Act don't often make it into the op-ed pages of the New York Times. The fact that they did so in the past several days shows just how invested in arcane regulatory issues the public has become when it comes to the Internet.

A federal appeals court ruled this month that the FCC did not have the authority to sanction Comcast for its P2P blocking, crippling the agency's ability to crack the whip on any "network management" practices. The decision did not actually affect Comcast much; the cable giant had already altered its network management techniques and now claims to use nondiscriminatory congestion management.

But it does have profound implications for the Internet as a whole. Courts essentially removed the FCC's authority to be the "cop on the beat" when it comes to Internet access. So has the shot clock expired on projects like network neutrality?

If you listen to some in Congress, it absolutely has. FCC Chair Julius Genachowski heard last week from Congressman Mike Johanns (R-NE), who told the FCC boss at a hearing, "You've been handed your hat in your hand in the Comcast case... [and] you can't go to Title II, it'd be like remaking the world."

Title II is the old "common carrier" bit of US communications law, the one that said public networks like the telephone must be open to all comers at the same rate and could not discriminate. Even though the old AT&T ran a private network, the company had to complete everyone's calls; blocking critics from using the network was illegal.

Internet service started out under this regime, too, since it's most common early incarnation was dial-up access provided by the common carriers. But cable networks had never been common carriers, and when they started offering Internet access, the FCC made a momentous decision: this access was not a "telecommunications service" but instead an "information service." DSL was also placed in the same category, which removed the "common carrier" designation.

Under common carrier law, the FCC had clear authority to address discrimination; under the "information service" category, it had no such explicit support from Congress. Kevin Martin's FCC therefore relied on the FCC's "ancillary" jurisdiction, but that move was just rejected by the courts. If the FCC wants to regulate network management, it either needs explicit authorization from Congress... or it needs to move the "information services" back into common carrier "telecommunications services."

The law profs weigh in

Johanns believes that this switch would be "like remaking the world," but two well-known and influential law professors publicly disagree. Writing in the aforementioned New York Times op-ed, University of Michigan law professor Susan Crawford said that the truly radical change was the earlier decision to deregulate Internet access.

"This was a radical move, because it reversed the long-held assumption that a nondiscriminatory communications network was essential to economic growth, civic welfare, and innovation," she wrote.

Her conclusion: if the FCC was the agency that made this change in the first place, it should be no problem to change it back.

Tim Wu of Columbia agreed, writing in Slate. Those earlier FCC reclassification decisions were meant to promote investment and therefore competition. But by 2006, "it was obvious that things have gone horribly wrong. Instead of more competition in broadband, every year brought less... AT&T, broken up in 1984, reemerged. The cable industry integrated into just a few mega firms, like Comcast. Today, there is every sign of more consolidation, and even the reemergence of an outright monopoly in high speed broadband (more than 50Mb per second) in many parts of the nation."

Reverting to Title II authority over Internet access isn't "politics; it's error correction," Wu wrote. He expects the FCC to go this route sometime over the summer.

These opinions are more than mere opinions. Crawford helped chair one of the Obama administration's technology working groups during the presidential transition and then worked in the White House. Wu currently chairs the board of Free Press, one of the most vocal DC pressure groups in this area and a key driver of the Comcast process at the FCC.

So the opinions carry weight. Genachowski himself was noncommittal when speaking to Congress, though he indicated that a full legal review was underway. Given how important Internet openness has been to Genachowski and to Obama, who has mentioned it numerous times, the FCC is unlikely just to let this one go.

But if the FCC does decide to reclassify broadband as a common carrier, the shouts of rage from the big ISPs will probably be audible all the way to California.