An Alternative to Title II

Network_neutrality_poster_symbolSince major sections of last year’s net neutrality ruling are being reviewed by the courts, I started wondering what would happen if the courts reverse that ruling and say that the FCC doesn’t have the authority to regulate broadband under Title II.

It’s hard to think that the courts will overturn this completely because to a large degree the courts aimed the FCC at the current solution in their order vacating the FCC’s first attempt to regulate broadband. But there are a lot of lawyers who think that the FCC rushed the current ruling into place without following its own rules – and that could cause problems in the court.

There is one interesting alternative to the net neutrality ruling that was published late last fall. It’s called the Grand Bargain and was published by the Information Technology and Innovation Council (ITIC). This is a think tank that includes several federal congressmen, academics, and representatives of tech companies like Cisco, HP, Amazon, Google, Oracle, Intel, IBM, Qualcomm and Microsoft.

The main thrust of the Grand Bargain is that broadband ought not to be considered as a “telecommunications service” which would mean that it would not be appropriate to regulate it under Title II. The ITIC sees nothing inherently wrong with data prioritization and understands that there are already many places in the web and network today where prioritization is essential – such as priority given to automated stock traders or to gamers.

The ITIC reports says that “the real issue should not be prioritization versus no prioritization, but what kind of traffic can be prioritized under what business arrangements.” The ITIC feels that the net neutrality ruling places too much emphasis on the negative aspects of paid prioritization without looking at the overall good it can create.

The Grand Bargain doesn’t just favor pro-carrier solutions but is also in favor of some of the FCCs thinking on consumer issues like the broadband adoption programs and strong privacy protections for consumers. It’s an interesting proposal that looks at the beneficial ideas that came from both sides of the net neutrality arguments. It’s very much a middle-of-the-road set of ideas and there is something in there for everybody to like.

But the proposal has one big flaw that I think is shared by every alternative net neutrality idea that I’ve seen: the proposal looks at goals that the ITIC would like to see FCC achieve but does not look at the FCC’s underlying authority to do what they are suggesting. The current net neutrality order was somewhat heavy handed in claiming Title II authority over broadband, but I can’t see that the FCC has any alternative.

Recall that the FCC’s first attempt to regulate broadband contained some of the aspects of the Grand Bargain, and the courts said that the FCC did not have the authority to regulate broadband in general.

This inability to regulate broadband was the FCC’s own doing when years earlier they had declared that broadband was an information service and was not a telecommunications service. The Grand Bargain and every other alternative to net neutrality fails to deal with the basic underlying question of the FCC’s authority to regulate broadband outside of Title II.

It’s clear that the companies behind the ITIC don’t want to see FCC regulation of the parts of the Internet that they think should be wide open and unfettered. But without some kind of regulation the Internet was already headed towards a very ugly future. It’s not hard to imagine a future where half a dozen large companies control most aspects of the Internet. We were already starting to see hints of that as Facebook and other big web companies were negotiating with large ISPs to make their products part of the base broadband packages – to the detriment of other web content. It’s inevitable that companies like Facebook and Google will try to make deals that expand reach and influence on the web. Title II regulation looks to be the only way that a regulator could apply brakes to such deals by regulating the ISP half of the equation.

It would be nice if we had an FCC that could just pick and choose what to regulate and which was free to do the kind of things proposed by the Grand Bargain. There are other countries that can do this. But the FCC is constrained by the laws that govern telecom and broadband and the only way for the FCC to regulate broadband outside of Title II is for Congress to give it the direct authority to regulate broadband without having to jump through any hoops. Unfortunately we live in a time of political gridlock and a largely ineffective Congress, and so this kind of solution is not likely coming any time soon. So I am still hoping that the court can find a way to allow Title II regulation. It’s better than all of the alternatives.

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