The nuclear option: FCC reclassifies broadband under Title II

I can’t be impartial and unbiased on this one: we just won the internet.

Four million Americans — and a few people from other countries who felt strongly enough about the matter to pitch in — wrote to the Federal Communications Commission, called their congressperson, spoke up online or in town hall forums, and made their viewpoints known. Not all of them agreed, but most of them were very clear about one thing: they did not want a small handful of massive companies controlling, throttling, and denying access to the internet content of their choice. This was an unprecedented number of responses, and it made perfectly clear how important the issue was to the American public: clear to the FCC, to Congress, and to the President himself.

Net Neutrality

Today, about half an hour ago at 1 pm EST on Feb. 26, the FCC voted to reclassify mobile and fixed broadband providers under Title II of the Telecommunications Act. This reclassification vote would have been unthinkable just a year ago, when Title II was still “the nuclear option,” and the FCC really had little contact with the millions of people it served. But we have come a long way in a short time, and it’s worth a quick recap.

As I’ve explained before, in greater detail, the whole Net Neutrality discussion started in 2005, when the FCC proposed four (later expanded to six) basic principles to guide its governance of internet providers. These were:

  • Consumers are entitled to access the lawful Internet content of their choice;
  • Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement;
  • Consumers are entitled to connect their choice of legal devices that do not harm the network;
  • Consumers are entitled to competition among network providers, application and service providers, and content providers;
  • A provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner; and
  • A provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking.

These seem like very reasonable ideals that would be hard to argue with. However, of course, providers argued, and were caught violating these principles. So, since 2005, the FCC has tried and tried to appease broadband providers with watered down versions of its Title I authority, while still trying to enforce them, and providers have just…sued the FCC.

Every time the FCC has gone to court, the courts have said, essentially, “These principles are great, but you can’t enforce them under your Title I authority. However, you’re welcome to reclassify, because you could totally enforce them using your Title II authority.”

The nuclear option

For many years, Title II reclassification was called “the nuclear option.” When the internet was still in its infancy, the FCC agreed that it would use Title I, which offered as little regulation as possible on the new industry, to encourage growth and competition. Over time, it was generally agreed — by the FCC and the large broadband providers — that this worked well enough, and it would be very dangerous to change it: no one knew what could happen to the industry if the FCC pushed the big red Title II button.

But the FCC had practically no power under Title I, and the providers knew it. So they kept pushing, and the American public felt the harm of their constant push. Comcast was caught throttling traffic. Verizon was caught downgrading Netflix at its interconnections during business negotiations. To the American public, Title II — which allowed the FCC to prevent these shenanigans — didn’t look like a nuclear option, it looked like the only way to provide protection.

When finally given access to the FCC — when the matter was opened up to public comment — the public commented en masse, on a level the FCC had never seen and could not really comprehend. Four million voices said: reclassify.

What changes now?

If you aren’t Comcast, Verizon, or AT&T…not much.

The important things to take away today:

  • These rules only affect broadband internet providers. This isn’t the government regulating The Internet, or the content on it. This has nothing to do with what you can or can’t watch or download. It’s about the companies that run the tubes.
  • These rules have been in place at the FCC since 2005. Nothing changes, from the FCC’s position. They’ve just been trying to find a way to make them enforceable for ten years. Things like accessing lawful content of your choice, using devices you want to use, and receiving content in a nondiscriminatory manner…these have been the goals of the FCC for a decade.
  • Other laws still apply. A provider can’t suddenly say that because the Open Internet rules allow it to only permit lawful internet content, it’s going to block all unlawful internet content, therefore it’s going to scan all email looking for evidence of unlawful content. This ruling does not give ISPs new powers.
  • We do not know yet how ISPs are going to react, or what their implementations of the new rules will be. Some major providers have already come out in support of reclassification. Some are certainly still against it, and will have to adjust to the new rules. Prepare for some growing pains.
  • There are going to be court cases over this. AT&T has already said it plans to sue. Courts have already said the FCC’s net neutrality principles are enforceable under Title II. So we’ll see.

This is an historic change: there should be no doubt about that. This is a grand experiment in broadband regulation, and a massive moment in internet history. You’re here for it, and if you were one of those four million voices, congratulations: you helped make it happen.