That makes the existing ban on internet providers blocking or slowing legal sites or charging them for faster delivery look even deader thanthey already do under Trump. And that elevates the risk that a site or app you like might have to pay off your internet provider, or that you’d have to pay more to visit or use it.
Revisiting “reclassification”
What Spicer had in mind is what telecom wonks call “Title II”—the legal framework from theTelecommunications Act of 1934 that covers telecom services that provide open-ended access instead of limiting you to a defined set of connections.
Why would Spicer, Trump or anybody else care? Because the FCC voted to put internet providers back into this category in 2015 after earlier attempts to write open-internet rules were defeated in the courts.
Those previous net-neutrality failures were rooted in the FCC’s2002 move to classify cable internet providers as “information services,” a newer category that may best describe AOL’s traditional dial-up online service. The commission later put other broadband technologies into this same bucket.
That matters because, like any other agency, the FCC can’t write rules unless Congress passes a law authorizing it to do that.
In his remarks, Spicer bemoaned the common-carrier rules, saying they treat ISPs “much like a hotel or another retail outlet.” That’s… an interesting comparison, but the more apt one would be to a phone company.
Net-neutrality opponents point to such Title II provisions as its requirement for “just and reasonable” pricing.
When the FCC enacted the net-neutrality rules, it ruled out rate regulation and many other forms of common-carrier oversight set out in the 1934 law, but it could change its mind later on. Re-re-classifying internet providers would ensure that a future FCC can’t do that.
But it also risks a new round of litigation and court defeats — one thing I’ve learned over the decade and change that I’ve been covering this issue is thatBig Telecom’s lawyers don’t let up.
Advocates of rebooting net neutrality via a reclassification need to explain how this wouldn’t yield a repeat of history, since the Title II rules are the only ones towithstand a court challenge.
As Matt Wood, policy director of the liberal tech-policy groupFree Press, told me in February: “You get a lot of Republicans saying they’ve always supported the principles of net neutrality — just not those pesky laws that make it a reality.”
Remember, Pai’s predecessorTom Wheeler had done little to halt the self-serving conduct of carriers offering their own video and music services for free without impacting users’ data caps. Competing services, meanwhile, could cause consumers to plow through their monthly data allotments resulting in overage fees.
Pai himself has voiced support for looser net-neutrality rules, but writing them would take a lot longer than zeroing them out — think a year or more.
“The Commission would have to initiate a proceeding, solicit comment and reply comments from stakeholders, digest and consider the merits of those comments from stakeholders and then construct a new order,” explainedPublic Knowledge associate counsel Kate Forscey. “It would take quite some time indeed.”
One opponent of the current rules suggested that the FCC would be better off with case-by-case enforcement, in which it would wait for individual site or app developers to call a foul on internet providers instead of telling ISPs upfront what they can or can’t do.
But whether we’re looking at lax enforcement of today’s rules, a new round of looser regulations or the FCC acting as a referee, it won’t be big-name video firms like Netflix (NFLX)that will suffer. It would be the small sites and apps without lawyers and lobbyists on call in Washington that stand to lose.
