The day is finally here. In a 3-2 decision Thursday, the FCC voted on an Open Internet Order that reclassifies broadband as a utility—under Title II of the Communications Act—as a way of allowing the FCC to prohibit net neutrality faux pas like fast and slow lanes, throttling, and content blocking.
The FCC has said that it will have a light-touch approach to implementing Title II and, for example, isn’t interested in regulating things like pricing. For the FCC the crucial issue is having the ability to enforce its authority against “unjust and unreasonable practices.”
The telecom industry is expected to challenge the decision in court. This was successful in 2014 when Verizon challenged the FCC’s 2010 net neutrality protections and won. At that time, though, the court did say that the FCC could reclassify broadband under Title II, and the goal is for that precedent to be upheld.
Net neutrality advocates are celebrating. Michael Weinberg, the senior vice president of Public Knowledge, said in a statement:
By embracing its Title II authority and creating clear, bright-line rules against blocking and discrimination, Chairman Wheeler and the FCC have earned a reputation as defenders of an Open Internet. … [A] bipartisan wave of Open Internet supporters from across the country came together to make it clear to their government that it had a crucial role in protecting an Open Internet.
But others are concerned. Commissioner Mike O’Rielly, who is, shall we say, not the most thrilled with the decision, said in a statement, “I am sorry to the staff members that were forced to prepare a half-baked, illogical, internally inconsistent and indefensible document. For an institution that prides itself on quality of work and legal and technical expertise, this document is anything but.”
Telecom lobbyists and Republicans have already been thinking about the scenario where the Title II reclassifcation passed, and they support legislation rather than agency regulation as the solution to the net neutrality problem. Opponents of the Title II reclassification say that it will discourage investors from putting money into U.S. infrastructure, because future administrations and iterations of the FCC may use the utility status in ways the current FCC doesn’t intend. On this point, Republican Sen. Mitch McConnell said in a statement, “The Obama Administration needs to get beyond its 1930s rotary-telephone mindset and embrace the future.”
Scott Belcher, the CEO of the Telecommunications Industry Association, said, “Everybody is in general agreement about having an open Internet. … We’re in violent agreement on almost everything that’s underway here, but we [need] a legislative solution that makes sense.”
But advocates say that the industry created the problem itself by forcing the FCC to resort to utility status. The digital rights group Fight For the Future writes that Title II reclassification was, “The only option that let the FCC stop Team Cable from breaking the key principles of the Internet we love.”
In a statement, Commissioner Ajit Pai said, “If we are going to act like our own mini-legislature and plunge the Commission into this morass, we need to use a better process going forward.” He added that it’s still extremely rare to get bipartisan agreement about net neutrality. “It brings to mind a Texas politician’s observation that there is nothing in the middle of the road but yellow stripes and dead armadillos,” he said. (Pai voted against the proposal, in case that wasn’t clear.)
Handling the decision with notable composure and dignity, Verizon just published its response in Morse code, so it would be understandable for 1930s technologists.