(Or: I’m feeling prescient today.)
Yesterday’s DC circuit court decision ruled that the US FCC has no authority to impose network neutrality rules. Comcast, you’ll remember, was doing some hinky stuff where they looked at what you were doing online… then if they didn’t like something that you wanted to send or receive over the Internet, they wouldn’t deliver those bits. (They were preventing BitTorrent clients from seeding by sending false reset [RST] messages.)
This kind of pernicious discrimination in the delivery of Internet content has led to abuses like Canadian ISP Telus’s decision to block its users from looking the web site of its worker’s union during a labor dispute. It is crucial that the owners of our communication systems not get to decide what we can and can’t communicate about.
Some version of network neutrality rules are a good idea, so you would think I’d be saddened by the court’s decision preventing the FCC from adopting them. (The hyperbolically charming Huffington Post headline about this was “The Day the Internet Lost.”) But I’m not sad. Because it looks like this minor setback for network neutrality may turn out to be a big victory.
The court’s ruling — on pretty arcane grounds — says that the FCC doesn’t have authority to make up network neutrality rules under the act granting it authority to regulate “information services.” But there are other ways to handle Network Neutrality. A chorus of voices (see this excellent Ars Technica analysis) is now suggesting that the FCC should classify broadband Internet as a common carrier.
In the network neutrality Notice of Proposed Rulemaking, the FCC noted that the network neutrality rules it was trying to set up look a lot like the nondiscrimination rules that already exist for common carriers in Title II of the Communications Act. The act already says:
47 USC 202 (a) It shall be unlawful for any common carrier to make unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services… (c) Any carrier who knowingly violates the provisions of this section shall forfeit to the United States the sum of $6000 for each offense and $300 for each and every day of the continuance of the offense.
So information services can discriminate, but common carriers can’t. Now the FCC will consider whether to classify broadband as a common carrier. Sounds good to me. In a journal article I wrote in 2007 I argued that these two debates (network neutrality / common carriage) are essentially the same debate. It’s all in my title: “Network Neutrality is the New Common Carriage.” So I’m feeling prescient today.
(N.B. The network neutrality debate has moved on since I wrote this article. In this article I argue against “one rule” — a reference to Tim Wu’s flat model of network neutrality regulations. In fact I’m in favor of network neutrality I just don’t think Wu’s particular flat model will work well. Indeed I characterize, as Wu does, the whole history of telecommunications as being effectively all about non-discrimination rules.)
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