The FCC Did NOT Make the Internet a Public Utility

The truth about yesterday’s net neutrality decision

Today the Federal Communications Commission voted 3–2 to approve of Title II-backed net neutrality regulations.

It’s a big and important day for the Internet. As I write this, advocates all across D.C. are celebrating. And they should! Not so long ago, after the D.C. Circuit ruled against the FCC in Verizon v. FCC, many pronounced that net neutrality was dead. Seriously — the spirit around the effort and the Internet was pretty moribund. See how many hyperlinks that was? I wasn’t joking.

The history of how “net neutrality came back from the dead” and the roles that the public, advocacy groups and companies (small and big) played in that revival will be important — and maybe will offer some great lessons as to the efficacy of online organizing.

But, before we get there, let’s try and set the historical record straight at the outset: by enacting and enforcing net neutrality regulations through Title II of the Communications Act and reclassifying broadband Internet access providers as “telecommunications services” under Title II, the FCC has not reclassified broadband Internet access providers as a public utility. (You may more commonly know broadband Internet access providers as Internet Service Providers/ISPs, or just Comcast & Verizon). That’s right: today’s vote didn’t make the Internet a public utility.

This point might be strained because the Internet has yet to really catch on to the whole idea nuance. But this distinction is pretty important. And it’s one that news organizations aren’t making.

Here’s a very quick, pictorial summary of building an ahistorical record (The Verge also has a nice summary):

The Hill

There are more to be had, too, but you probably don’t want to keep scrolling through screenshots of headlines.

There are arguments to be made that the Internet is, or should be, a public utility. Nilay Patel wrote a pretty convincing argument for that almost exactly a year ago.

But today’s vote didn’t do that.

Though reclassifying broadband Internet access providers under Title II allows the FCC to treat them as “common carriers,” that reclassification in and of itself does not now mean that the Internet is treated like a public utility. As John Bergmayer from Public Knowledge explains:

This misapprehension comes about because the most prominent telecommunications common carriage service of the past—telephone service—also was regulated as a utility. But utility regulation typically carries with it a number of features not present in any current proposals for broadband—most notably, thorough price regulation and detailed local regulation of service quality, customer service responsiveness, and so forth.

Just because a service is a common carrier and just because something provides a common carriage service does not make it a public utility.

As Bergmayer wrote, “even full common carrier regulation is not identical to utility regulation.”

Are there parts of Title II that act like utility-style regulations? Sure! No one has any delusions about that.

But thanks to a tool called forbearance, the FCC is even able to make sure that Title II-backed net neutrality isn’t close to “utility-style regulation.” That’s because there won’t be any rate regulation. ISPs will not have to file tariffs. ISPs won’t be subject to intense, local “service of quality” scrutiny. They won’t have to unbundle and lease access to their network to competitors. The FCC doesn’t require contribution by ISPs to the Universal Services Fund, and there won’t be new taxes and fees.

How we record and understand events as they happen matters — it shapes the historical record and our perceptions.

This especially matters in the technological world, where all too often we (willingly or unwillingly) siphon human agency to technological determinism, or, in the alternative, shape technology in harmful ways, or in ways we didn’t really mean to.

So, is it one of the biggest days in the history of the Internet? Definitely.

Is the Internet now a public utility? No.

In the frenzied haze of celebration, let’s not pass over little nuances like this. They matter for the lawsuits that will be coming, they matter for how we approach shaping technology now and in the future, and, most importantly, they matter for a complete and accurate history of the Internet.

And now I’ll go celebrate, too.