by Barbara A. Cherry, Professor, The Media School, Indiana University
*This post is part of ACSblog’s symposium on the FCC’s net neutrality rules.
The U.S. Open Internet Debate is a Legal Battle
The open Internet debate in the U.S. is essentially a legal chess game. Americans need to understand the core legal battle at stake in order make sense of the rhetoric and media coverage related to the Open Internet debate as well as the importance of the FCC’s Open Internet Order adopted in early 2015.
Why is the open Internet a legal chess game? Because it’s an ongoing legal battle – before the FCC, the courts, and potentially through Congressional legislation - over classification of broadband Internet access service (BIAS) under federal statutory law. Is BIAS a “telecommunications service” and thus a common carriage service, or is BIAS an “information service and thus not a common carriage service?
To understand the core legal battle at stake, we need to start with some important historical content. Since the early 20th century, telecommunications carriers have borne two separate, special legal statuses in the United States – as common carriers and as public utilities. The origins of these two legal statuses arise from different bodies of law, and each imposes obligations for different reasons. Throughout the 20th century, telecommunications carriers have been common carriers under federal law, and public utilities under states’ laws. For this reason, both the federal and state governments have regulatory jurisdiction over telecommunications carriers.