The debate over net neutrality rages on. Last month, the FCC unveiled new rules for regulating internet traffic. Opponents of the new rules believe they don’t do enough to ensure equal access to digital content. FCC chairman Tom Wheeler took those concerns seriously, and is set to finesse last month’s rules with some new language.
At the heart of this debate is a question: How should we regulate the internet, like a private service or a public utility?
Kevin Werbach served as counsel for new technology policy at the FCC in the '90s. He says on one hand, the internet has become essential infrastructure for life and business, much like other public utilities. But he added, “in telecommunications regulation, calling something a utility has a particular legal meaning.”
The legal framework in this case revolves around Title II, the law that gives the FCC the authority to regulate the telecom industry. “If broadband access is under Title II ,” says Werbach, “then it’s subject to much broader authority of the FCC to prohibit what’s called unjust and unreasonable discrimination.”
Proponents of net neutrality argue that the FCC could use Title II to stop cable companies from creating fast lanes, like when Netflix agreed to pay Comcast extra for faster streaming. Christopher Yoo, a law professor who specializes in internet regulation doesn’t expect that to happen. “When the Supreme Court and Federal Communications Commission have looked at whether the internet is properly regulated as a public utility, they have consistently said no,” says Yoo.
Under the FCC’s revised proposal, internet providers are still allowed to make deals and create fast lanes. But, the new proposal suggests that the FCC will use its authority to make sure those deals are fair.
Any efforts to regulate those deals however, will likely be challenged in court. “So there are substantial legal obstacles to regulating the internet like a public utility,” Yoo says.
In the end it may not be the FCC, but the courts that decide how the internet should be regulated.