I had the pleasure yesterday of engaging in the blogosphere’s version of a friendly local pub discussion over pints with the estimable Harold Feld of Public Knowledge. As is often the case when I read Harold, I learned a few things, the most interesting of which is that we appear to agree on an important point – that reclassification, in the sense of going back to rules that applied to phone companies’ broadband services prior to 2005, would not give the FCC any greater authority to regulate the services ISPs provide their customers than it has today.
In other words, Harold and I agree that with such a reclassification, ISP services would remain information services subject to Title I. Facilities-based ISPs would have a separate obligation to offer the underlying transport components of the their service on a common carrier basis under Title II, but that would not entail any additional FCC authority over their ISP services.
I also learned – and I have to say that I was surprised to learn — that Harold would be perfectly comfortable under such a regime with allowing ISPs to block, degrade, or filter the Internet to their heart’s content (…of course, we’d never do anything like that). Harold’s theory appears to be that as long as the underlying transport is available on a common carrier basis, a thousand ISPs, I mean flowers, will bloom and consumers can freely decide which version of the Internet they want. Harold appears to base this theory on the proliferation of ISPs in the dial-up world. Personally, I think reciprocal compensation (a.k.a., the ‘90s version of traffic pumping) probably had more to do with the emergence of all those ISPs than the Computer Inquiry rules. But that’s a debate for another day.
While Harold may be comfortable under such a regime, I’d be willing to bet that net neutrality supporters with actual business plans that depend on ISPs not blocking applications like VoIP or video will find his proposal to be pretty weak beer. Indeed, under Harold’s logic, Chairman Powell was misguided in going after Madison River for blocking VoIP. After all, at the time, Madison River, as well as all other phone companies, offered the underlying transport as a common carrier service under Title II.
Assuming the FCC’s lawyers reach the same conclusion as Harold and I have — that reclassification would not give the FCC any more authority over ISP services than it has today — and assuming that they are not as optimistic as Harold is about the thousand flowers blooming, then they face a fairly simple calculation. They either have sufficient authority under Title I to adopt some version of net neutrality or they don’t. If they decide that they don’t, then maybe it really is time for them to ask for a little help from Congress, since “reclassification” under Title II appears to be a dead end.