Net Neutrality Backers Dig In for Title II Fight

A consortium of businesses and interest groups that advocate for net neutrality is stepping up its calls for the Federal Communications Commission to take a more forcible approach toward exercising regulatory authority over the Internet, warning that a recent legal setback imperils many of the goals laid out in the commission’s national broadband plan.

The Open Internet Coalition (OIC), whose members include major Internet companies like Google (NASDAQ: GOOG) and Amazon (NASDAQ: AMZN), as well as consumer advocate groups such as Free Press and Public Knowledge, today urged the commission to reclassify high-speed Internet as a telecommunications service under federal communications law, a narrow but significant distinction that would go a long way toward clarifying its authority in the area.

The group’s appeal comes just a week after a federal appeals court struck down the FCC’s 2008 order punishing Comcast (NASDAQ: CMCSA) for secretly degrading peer-to-peer traffic on its network, dealing a blow to net neutrality advocates.

“The Comcast decision destroys the FCC’s theory for promulgating network neutrality rules,” Markham Erickson, executive director of the Open Internet Coalition, said during a conference call with reporters.

That theory was predicated on the notion of ancillary authority, where the FCC can issue orders and enact rules based on authority implied, but not expressly stated, by statute.

But the Comcast case “so narrowed the concept of ancillary authority to effectively make it irrelevant, at least in this space,” Erickson said.

Erickson said there is broad agreement among the members of his coalition that the next step for the FCC is to reclassify broadband as what is known as a Title II service, which would clarify the commission’s authority over ISPs under communications law, and reverse a 2002 FCC decision to deregulate broadband by classifying it as a Title I service.

Under the theory of ancillary authority, the FCC drafted a policy statement in 2005 that, among other things, said that consumers should be able to access lawful content of their choosing on the Internet. That policy statement was the basis of the Comcast censure, but now that the court has vacated that order, open Internet advocates warn that the government’s consumer-protection authority has been essentially nullified.

“After the Comcast case, the government has no policy here,” said Christopher Libertelli, director of government and regulatory affairs at Skype, which is a member of the OIC. “At some level this whole Title I-Title II debate is about where do consumers go.”

Of course, telecom providers are not eager to subject themselves to greater regulation, and can be expected to fight any effort at the FCC to reclassify broadband as a Title II service. They can count the two Republican commissioners as allies at the FCC. One, Robert McDowell, penned a column last week in the Washington Post entitled “Hands off the Internet,” in which he argued against any “mistaken effort” to reclassify broadband, citing the many success stories born from the Web since the 2002 order.

In reacting to last week’s decision, several telecom providers downplayed the significance of the court’s ruling, arguing that the commission could still execute its broadband agenda and reaffirming their commitment to abide by the principles of the Internet policy statement, even if the commission lacked the authority to enforce it.

For the OIC, last week’s court order is about much more than just net neutrality. The group noted the FCC’s general counsel’s warning that the decision puts the commission on shaky territory regarding other aspects of the plan, such as the move to shift federal subsidy from telecom service to broadband, and the move to implement certain consumer protections, such as requiring ISPs to make disclosures about price, connection speed and coverage.

The FCC could appeal last week’s decision, either to the same court that issued the ruling or to the Supreme Court, but Erickson said that a victory for the commission in either of those scenarios would be extremely unlikely.

Of course, the uncertainty of the FCC’s statutory authority over broadband could be cleared up by an act of Congress, but given the political interests involved and the historical slowness with which telecom legislation has moved, Erickson urged the FCC to act on its own.

“We don’t want to see a decade’s worth of time where there’s no protection for consumers,” he said. “I would almost look at reclassification as sort of a spare tire that lets the commission move forward on its agenda.”

Kenneth Corbin is an associate editor at, the news service of, the network for technology professionals.

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