If FCC gets its way, we’ll lose a lot more than net neutrality

The Republican-led Federal Communications Commission is preparing to overturn the two-year-old decision that invoked the FCC's Title II authority in order to impose net neutrality rules. It's possible the FCC could replace today's net neutrality rules with a weaker version, or it could decide to scrap net neutrality rules altogether.

Further Reading Ars Technica supports net neutrality Either way, what's almost certain is that the FCC will eliminate the Title II classification of Internet service providers. And that would have important effects on consumer protection that go beyond the core net neutrality rules that outlaw blocking, throttling, and paid prioritization. Without Title II's common carrier regulation, the FCC would have less authority to oversee the practices of Internet providers like Comcast, Charter, AT&T, and Verizon. Customers and websites harmed by ISPs would also have fewer recourses, both in front of the FCC and in courts of law.

Title II provisions related to broadband network construction, universal service, competition, network interconnection, and Internet access for disabled people would no longer apply. Rules requiring disclosure of hidden fees and data caps could be overturned, and the FCC would relinquish its role in evaluating whether ISPs can charge competitors for data cap exemptions.

These aspects of Title II are part of why consumer advocacy groups and Web companies have teamed up to protest FCC Chairman Ajit Pai's plan to overturn the net neutrality order with today's "Internet-wide day of action to save net neutrality."

The consumer protection powers provided by Title II are also part of why the FCC's lone Democrat, Commissioner Mignon Clyburn, voted against Pai's plan to start the process of reversing the net neutrality rules.

Title II is "the most legally firm authority that we have... when it comes to protecting consumers," Clyburn told Ars this week. ISPs naturally answer to shareholders and try to maximize revenues and profit, but their financial incentives can clash with the public interest, she said. As the nation's expert agency on telecommunications, the FCC should be "the cop on the beat," according to Clyburn.

Title II also gives the FCC its universal service authority, which is crucial for making sure that all Americans—including those in rural areas—have access to telecommunications networks. "Taking that away would undercut the FCC's ability to ensure that there is universal service for broadband," Clyburn said.

In short, Title II "provides a known framework for legal analysis," Andrew Schwartzman, a Georgetown Law lecturer and attorney who specializes in media and telecommunications policy, told Ars. "Absent that, it's very unclear what basis there is to assess the practices of Title I information services," which is what ISPs will be classified as if the FCC goes through with its plan.

How Title II applies to broadband

To recap, in February 2015 the FCC's then-Democratic leadership classified both home and mobile broadband as a telecommunications service, ensuring that ISPs would be regulated as common carriers under Title II of the Communications Act. Title II is the same authority created by Congress to regulate AT&T's telephone monopoly in 1934, and ISPs have bitterly complained about being subject to utility-style regulation.

The FCC did not impose the most onerous Title II restrictions on ISPs. The FCC can pick and choose which parts of the statute apply to different kinds of providers in a process known as "forbearance." When bringing broadband under Title II, the FCC forbore from the sections it didn't want to apply.

Because of forbearance, the 2015 decision did not bring rate-of-return price regulation or tariffs to consumer broadband. Cable and fiber providers also weren't forced to lease wholesale access of their lines to competitors, something DSL providers had to do until 2005. Further Reading FCC votes for net neutrality, a ban on paid fast lanes, and Title II

The FCC's 2015 decision did use Title II to prohibit ISPs from blocking or throttling lawful Internet content and to prohibit paid prioritization (i.e. "fast lanes" sold to websites that would pay for faster access to consumers). Those are the "bright-line" net neutrality rules, and they receive most of the attention in public debates on net neutrality.

But crucially, the FCC did not forbear from a few parts of Title II that protect consumers in other ways. Even in cases where there aren't bans on a specific practice, like blocking or throttling, Section 201 of Title II requires ISPs to be "just and reasonable" in their rates and practices. It's also illegal under Section 202 of Title II for companies classified as common carriers "to make any unjust or unreasonable discrimination" in rates, practices, or offering of services. Further Reading Ajit Pai accidentally supports utility rules and open-access networks

Broadband customers and companies that offer services to consumers over the Internet can complain directly to the FCC about unjust or unreasonable behavior. For example, a customer who is charged outrageous prices or data cap overage fees could claim that the charges are unjust and unreasonable and ask the FCC to intervene. This hasn't led to any FCC actions against ISPs yet, but the possibility exists and it could cause ISPs to be more careful in their pricing.

Anyone damaged by an ISP's unjust or unreasonable behavior can also sue the ISP in court because the FCC decided to apply Title II's Section 207 to broadband.

"It's a basic right," said Schwartzman, who also led a public interest telecommunications law firm called the Media Access Project from 1978 to 2012. "If there's any kind of practice or problem that a reluctant FCC does not want to address... a private party can go to court and get damages. It is a very important consumer protection that has teeth and provides a backstop."

Comcast, BitTorrent throttling, and net neutrality

The net neutrality debate goes back a decade. Comcast was caught interfering with BitTorrent traffic in 2007, and the FCC voted the next year to punish the company for "discriminatory network management practices."

But Comcast sued the FCC and got the decision overturned, forcing the FCC to find new ways to enforce net neutrality principles.

"The facts were not in dispute. They were guilty, but the commission couldn't come up with the legal basis to discipline them," Schwartzman said.

Comcast also settled a class-action lawsuit over the peer-to-peer throttling and agreed to net neutrality provisions as part of its merger with NBCUniversal, but the question of how the FCC would enforce net neutrality industry-wide still needed to be answered.

In 2010, the FCC imposed rules against blocking, throttling, and paid prioritization, but the organization did so without using Title II. Verizon sued and the rules were thrown out in 2014 by a federal appeals court, which said the FCC erred by imposing per se common carrier regulations without first declaring that ISPs are common carriers. Further Reading Net neutrality going down in flames as FCC votes to kill Title II rules

For example, the FCC's 2010 rule against paid prioritization left no room for "individualized bargaining" between ISPs and websites, judges wrote. As long as ISPs weren't common carriers, there had to be room for negotiation between ISPs and websites.

The FCC had thus tried to enforce net neutrality twice without Title II and been unsuccessful in court both times, Clyburn pointed out this week.

After the Verizon court decision, then-FCC Chairman Tom Wheeler initially proposed rules that would have allowed paid prioritization as long as each third-party service was offered similar, commercially reasonable terms. But he changed his mind, and the FCC invoked Title II in 2015, allowing for a strict ban on paid priority. Broadband industry lobby groups sued, but this time the FCC won and the rules remained in place.

The prospects for ISPs changed when Donald Trump won the presidency and appointed Pai to lead the FCC's new Republican majority. In May, the FCC approved a Notice of Proposed Rulemaking (NPRM) that proposes eliminating the Title II classification and seeks comment on what, if anything, should replace the current net neutrality rules. The FCC plans to take comments on its plan until August 16 (the docket is available here) and make a final decision sometime after that.

The story won't be over at that point, because net neutrality advocates could sue in an attempt to re-instate the Title II decision. (And the FCC could try to bring back Title II under any future Democratic president.) But courts have generally allowed the FCC to classify broadband however it wishes.