by Erik Stallman, Director of the Open Internet Project and General Counsel at the Center for Democracy and Technology
*This post is part of ACSblog’s symposium on the FCC’s net neutrality rules.
Depending on one’s perspective, the Open Internet Order’s reclassification of broadband Internet access service as a telecommunications service under Title II of the Communications Act – giving the FCC clear rulemaking authority with respect to that service – was either unavoidable or unthinkable. What the history leading up to that reclassification shows is not a power-mad Commission looking to “regulate the Internet,” but a Commission left with few other options to protect an open Internet that has become increasingly important to all Americans. What the future hopefully will show is that reclassification is the best option, not only in terms of legal defensibility, but also in terms of accommodating and fostering continued evolution in Internet technology and uses.
In part, the FCC’s reclassification of broadband as a Title II telecommunications service responded to the limited or illusory nature of alternative sources of authority for net neutrality rules. When the Supreme Court’s 2005 decision in NCTA v. Brand X affirmed the FCC’s classification of cable broadband as an “information service” not subject to the FCC’s plenary authority, the Court suggested that “the Commission remains free to impose special regulatory duties on facilities-based ISPs under its Title I ancillary jurisdiction.” That sounded good — until the FCC tried it. In the Comcast-BitTorrent case, the FCC sought to rely on ancillary jurisdiction and policy statements to sanction an ISP for degrading peer-to-peer traffic. In 2010, the D.C. Circuit Court of Appeals held in Comcast v. FCC that this would not do because “[a]lthough policy statements may illuminate [statutory] authority, it is Title II, III, or VI to which the authority must ultimately be ancillary.”
Many observers viewed reclassification of broadband as a Title II telecommunications service as the logical next step following the Comcast decision, but it took one more rulemaking and one more unsuccessful trip to the D.C. Circuit to take the remaining options off the table. The Verizon v. FCC decision in 2014 vacated the FCC's 2010 Open Internet Order on the ground that the FCC had once again exceeded its cited authority – this time Section 706 of the Telecommunications Act – by imposing common carriage rules on ISPs (such as no blocking or no throttling of Internet traffic) without reclassifying broadband as a Title II common carrier service. Back to the drawing board.