Web browsing privacy

The Title II order laid the legal framework for a 2016 FCC decision that required ISPs to get customers' permission before using, sharing, or selling their browsing and app usage histories. The rules were supposed to take effect later this year and were intended to protect broadband users' privacy as ISPs try to challenge Google and Facebook in the advertising market.

President Trump and the Republican-controlled Congress already repealed the rules and took action preventing the FCC from issuing similar rules in the future. If Congress and Trump hadn't done that, the FCC eliminating its own Title II order would have wiped the rules out anyway.

Technically, Section 222 of Title II still applies to ISPs, requiring them to protect the confidentiality of "customer proprietary network information." But since there are no longer any broadband-specific privacy rules designed to implement that requirement, it's unclear what ISPs actually have to do to comply.

The Federal Trade Commission will be able to regulate ISPs' privacy practices if the Title II decision is overturned, because the FTC can regulate companies that aren't classified as common carriers. But FTC enforcement is less strict than the repealed FCC rules: the online advertising industry uses self-regulatory mechanisms in which websites let visitors opt out of personalized advertising based on browsing history, and websites can be punished by the Federal Trade Commission if they break their privacy promises.

Overturning Title II would eliminate the Section 222 requirement on ISPs, but the move would probably help consumers in this instance, since at least the FTC would be able enforce privacy commitments. But if the Title II privacy rules had taken effect on schedule, then Internet customers would have benefited from a stronger opt-in requirement. If ISPs are regulated by the FTC, they won't have to obtain consumers' opt-in consent before using or sharing browsing histories in order to serve targeted ads.

Pole attachments

The obscure issue of attaching cable or fiber wires to utility poles plays a fairly big role in broadband competition. If new ISPs can't get quick access to poles, construction is delayed or network buildouts become so cumbersome that they're not worth doing at all.

Google Fiber found this out the hard way in some cities where it had to wait for big ISPs to move their wires on each pole before Google Fiber could install its own. Two major cities passed rules letting newcomers like Google Fiber make all of the necessary wire adjustments on their own without waiting for incumbents, and these cities were promptly sued. (Charter and AT&T sued the local government in Louisville, Kentucky, while Comcast and AT&T sued the government in Nashville, Tennessee.)

Title II, as it happens, has a section applying the "just and reasonable" standard to rates, terms, and conditions for pole attachments and access to other infrastructure. The FCC's 2015 Title II order allowed this section to apply to broadband, giving the commission another source of authority in future rulemakings designed to speed up construction for broadband competitors.

The Pai FCC has begun a proceeding on pole attachments with the goal of shortening construction waiting periods, but eliminating the Title II classification could limit the reach of FCC regulation in this area.

"Title II means that companies that are deploying broadband have non-discriminatory access to those poles and [fiber] conduits at reasonable rates," Clyburn said.

The FCC's pole attachment rules apply to privately owned poles except when states opt out of the federal regime and come up with their own method of regulating pole attachments.

Broadband for poor people

In March 2016, the FCC expanded the Lifeline phone subsidy program so that it can also be used to buy Internet service. As a result, poor people can use a $9.25 monthly household subsidy to buy home Internet or mobile broadband.

The Title II reclassification played a role here via Section 254's universal service provisions, because it ensured that "the Universal Service Fund now applies to broadband networks," according to consumer advocacy group Public Knowledge. "The expansion allows eligible telecommunications carriers including broadband-only providers to offer subsidized broadband services to low-income consumers. However, if broadband were to lose its Title II classification, certain providers may no longer qualify to offer subsidized broadband services."

Separately, the Pai FCC has taken steps to limit the expansion of Lifeline broadband subsidies. Pai says he supports Lifeline being used for broadband, but his decision to eliminate a new nationwide approval process has made it more difficult for ISPs to gain approval to sell the subsidized plans to low-income consumers.

Title II helps ensure that the FCC is "on solid legal footing" to expand Lifeline broadband access, Clyburn said.

Disability access

The Title II order also applied sections of the statute related to access for people with disabilities, thus requiring ISPs "to ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable." The provisions in this statute would continue to apply to landline and mobile phone operators, which were classified as common carriers before 2015. But without the Title II classification of broadband, people with disabilities would not have the same legal protections for broadband-specific services, even though there's a large gap in broadband access between people who have disabilities and those who don't.

Title II makes a difference in how explicitly the FCC can address issues such as hearing aid compatibility in a broadband context, Claude Aiken, Clyburn's wireline legal advisor, told Ars.

What's next

Pai has repeatedly made it clear that he intends to eliminate the Title II classification of broadband, so there probably isn't much hope of stopping the FCC from following through on the plan. The FCC could implement a weakened form of net neutrality rules, but even that might not happen as Pai's proposal argues that throttling of websites might somehow be good for consumers.

Filing comments on the FCC's plan could still be important in future court cases, according to Gigi Sohn, who was a top counselor to former FCC Chairman Tom Wheeler when the commission reclassified ISPs as common carriers. "In-depth comments that address key issues show the breadth of support for the rules and can help bolster the inevitable legal case against the repeal," she wrote.

Comments are still being taken by the FCC at this link. Click "Express" to write a comment directly into the FCC form, or "New Filing" to upload documents.

If the Republican-led FCC's plans go through and the Title II classification is removed from broadband, that merely represents the latest ebb and flow in the history of net neutrality within the US. Advocates of strict net neutrality rules won't give up because they know from experience that things can change.

"There are few decisions we make at the FCC that are final final," Clyburn said. So even if the FCC majority votes to eliminate Title II and net neutrality rules, the Democratic commissioner said that "it will be challenged" in court.