FCC Net Neutrality rules are dead, but they sucked anyway: time for some better ones

Yesterday, the DC Circuit Court of Appeals invalidated the FCC's Open Internet Rules. These were the closest thing to a set of Net Neutrality rules America had: rules that were supposed to ensure that ISPs fetched you the data you asked for without prejudice, rather than giving preference to the companies that had bribed them for faster access to you.

But these rules sucked

As David Isenberg points out, the Open Internet Rules were drafted to be as inoffensive to great and powerful companies as possible. They were toothless, nearly pointless rules that turned their backs on "500 years of common law and a deep corpus of case law."

In 2009 and 2010 — as FCC Chairman Genachowski deked and ducked and tried not to offend anybody powerful — it was clear to all, especially to the biggest telcos and cablecos, that if the FCC were to classify Internet access as a Title 2 telecommunications service, this would (a) solve the big problems that the phrase "Network Neutrality" was invented to describe, would (b) provide strong legal grounds against challenges, and would (c) be consistent with 500 years of common law and a deep corpus of case law. Nope, we could not have that. It was better to have a weak compromise, full of exceptions, that was bound to be overturned in court. Here's my own bitter prognostication from December 2010.

Now that the DC Appeals Court has struck down the FCC's 2010 order [court decision here], now is the time to demand that the FCC do what it should have done in the first place. It should classify Internet access as a Title 2 Telecommunications Service. The precedents for doing this are strong. The bigcos will be unanimous in their hatred for it; we should welcome their hatred.

The Internet should be for everybody. It should not be narrowly monetized, productized and marketed to benefit the already-rich and the already-powerful. Reclassification of Internet access to be a Title 2 Telecommunications Service could do this.

On Freedom to Tinker, Annemarie Bridy has more, including how the FCC's "past regulatory choices continue to haunt it" — the ball is now in the FCC's court:

Following the court's decision, which certainly comes as no surprise to lawyers at the FCC, the ball is back in the FCC's court to do what it proposed to do back in 2010 but has so far not had the political will to do: separate, for regulatory purposes, the connectivity component of broadband, which consists of functions that enable the transmission of data, from the information component, which consists of services such as e-mail, access to online newsgroups, and the ability to create a personal Web page. By reclassifying the connectivity component as a telecommunications service, the FCC would be operating squarely within the bounds of its statutory authority to impose anti-blocking and non-discrimination obligations on broadband providers. The FCC has the authority to modify its previous classification, as long as it gives a good reason for doing so, which it can do, if only it has the will. This is an opportunity for the FCC's new Chairman, Tom Wheeler, to make good on President Obama's past promises to support net neutrality.

On Consumerist, Kate Cox explains the history of this mess with admirable clarity:

The problem goes back to the 1990s, when home broadband connections first began to appear and politicians and government agencies had to figure out what to do with them. The result was the Telecommunications Act of 1996 [PDF].

Under section 706 of that Act, the court found, the FCC does indeed have the authority to "enact measures encouraging the deployment of broadband infrastructure." So yes, the FCC can regulate broadband, in a general sense. After that, it gets tricky.

The Telecommunications Act has two different categories of services in it. One category covers telecommunications carriers–the company that runs the wires to your house–and the other covers information-service providers. Way back when, these would have been different entities: one company ran the phone lines on your street, which you then used to dial in to a different company, like AOL or Prodigy.

Telecom companies were prohibited, as common carriers, from restricting what traffic they carried. In other words, your local phone company couldn't say, "You aren't allowed to dial AOL from your home phone; you have to use our service instead." The same rules were found to apply to DSL connections as to basic land-lines.

(Image: Net Neutrality News Tag Cloud, a Creative Commons Attribution Share-Alike (2.0) image from seanweigoldferguson's photostream)