FCC Chairman Ajit Pai has proposed a plan to eliminate net neutrality and privacy for broadband subscribers. Of course, those protections are tremendously popular, so Chairman Pai and his allies have been forced to pay lip service to preserving them in “some form.” How do we know it’s just lip service? Because the plan Pai is pushing will destroy the legal foundation for net neutrality. That’s right: if Pai succeeds, the FCC won’t have the legal authority to preserve net neutrality in just about any form. And if he’s read the case law, he knows it.
Let’s break it down.
The FCC’s Proposal Makes It Impossible to Enforce Core Net Neutrality Requirements
Under the Telecommunications Act of 1996, a service can be either a “telecommunications service,” like telephone service, that lets the subscriber choose the content they receive and send without interference from the service provider, or it can be an “information service,” like cable television or the old Prodigy service, that curates and selects what content channels will be available to subscribers. The 1996 law provided that “telecommunications services” are governed by “Title II” of the Communications Act of 1934, which includes nondiscrimination requirements. “Information services” are not subject to Title II’s requirements.
Under current law, the FCC can put either label on broadband Internet service – but that choice has consequences. For years, the FCC incorrectly classified broadband access as an “information service,” and when it tried to impose even a weak version of net neutrality protections the courts struck them down. Essentially, the D.C. Circuit court explained [PDF] that it would be inconsistent for the FCC to exempt broadband from Title II’s nondiscrimination requirements by classifying it as an information service, but then impose those requirements anyway.
The legal mandate was clear: if it wanted meaningful open Internet rules to pass judicial scrutiny, the FCC had to reclassify broadband service under Title II. It was also clear to neutral observers that reclassification just made sense. Broadband looks a lot more like a “telecommunications service” than an “information service.” It entails delivering information of the subscriber’s choosing, not information curated or altered by the provider.
It took an Internet uprising to persuade the FCC that reclassification made practical and legal sense. But in the end we succeeded: in 2015, at the end of a lengthy rulemaking process, the FCC reclassified broadband as a Title II telecommunications service and issued net neutrality rules on that basis. Resting at last on a proper legal foundation, those rules finally passed judicial scrutiny [PDF].
But now, FCC Chairman Ajit Pai has proposed to reverse that decision and put broadband back under the regime for “information services” – the same regime that we already know won’t support real net neutrality rules. Abandoning Title II means the end of meaningful, enforceable net neutrality protections, paving the way for companies like Comcast or Time Warner Cable to slice up your Internet experience into favored, disfavored, and “premium” content.
Title II Is Not Overly Burdensome, Thanks to Forbearance
While we are on the subject of the legal basis for net neutrality, let’s talk about the rest of Title II. Net neutrality opponents complain that Title II involves a host of regulations that don’t make sense for the Internet. This is a red herring. The FCC has used a process called “forbearance” – binding limits on its power to use parts of Title II – to ensure that Title II is applied narrowly and as needed to address harms to net neutrality and privacy. So when critics of the FCC’s decision to reclassify tell horror stories about the potential excesses of Title II, keep in mind that those stories are typically based on powers that the FCC has expressly disavowed, like the ability to set prices for service.
What is more, Title II offers more regulatory limits than the alternative of treating broadband as an information service, at least when it comes to net neutrality. Where Title II grants specific, clear, and bounded powers that can protect net neutrality, theories that do not rely on Title II have to infer powers that aren’t clearly granted to the FCC. As proponents of limited regulation, these theories concern us. The proper way to protect neutrality is not to expand FCC discretion by stretching the general provisions of the Telecommunications Act (an approach already rejected in court), but to use a limited subset of the clear authorities laid out in Title II.
The FTC Cannot Adequately Protect the Privacy of Internet Subscribers
Reclassifying broadband as an information service not subject to Title II also creates yet another mess for subscriber privacy. The FCC crafted good rules for Internet privacy, but Congress just rejected them. But it left in place the FCC’s underlying authority to protect privacy under Title II, which leaves privacy in limbo. Abandoning Title II for broadband altogether would mean that the FCC no longer has much of a role to play in protecting broadband privacy – and it’s not clear who will fill the gap.
Some have looked to the FTC to take up the mantle, but just last year AT&T persuaded a federal appeals court that, as a company that also owned a telephone business, the FTC had no power over any aspect of AT&T. That precedent covers the entire west coast and leaves millions of Americans without recourse for privacy violations by their Internet service provider. And there’s no doubt that AT&T and others will try to extend that precedent across the country.
Even without this precedent, the FTC’s enforcement authority here targets deceptive trade practices. The agency will only take action if a company promises one thing and delivers another. If the legalese in a company’s privacy policy explains how it is free to use and sell your private information, and it follows that policy, the FTC can’t help you.
Tell the FCC to Keep Title II and Not Undermine Net Neutrality
The FCC is now accepting comments on its plan. Make yourself heard via DearFCC.org.
