In the midst of the battle for the future of the Internet, President Barack Obama has made his allegiance clear. Obama released a statement on November 10th urging the FCC to adopt new regulations that would treat the Internet like a utility in order to preserve a “free and open internet.” The President’s plan endorses an idea that has become popularly known as “net neutrality.” Proponents of net neutrality claim that it would prevent Internet service providers (ISPs) from picking winners and losers online, which they claim would effectively destroy the open Internet. In his recent statement, Obama outlined several bright line rules which would prevent ISPs from blocking content from customer access, prohibit throttling, increase transparency, and forbid paid prioritization. In order for the FCC to accomplish these goals, President Obama advised that the Commission must adopt the strictest rules possible, which would require broadband service to be treated as a public utility.
Opponents of President Obama’s plan argue that treating the Internet like a utility would slow innovation and raise costs, equating the potential FCC regulations to “micromanagement.” Many who oppose the plan argue that the move would increase bureaucracy and cause inefficiency; rather than add it to the list of government-controlled infrastructure, they believe that the open market is the best method of meeting consumer needs.
Classifying the Internet as a utility would entail treating ISPs as common carriers, which are governed by Title II of the 1934 Telecommunications Act. Currently, ISPs are classified as information services. Section 706 of the 1996 Telecommunications Act, which governs the FCC’s oversight of broadband services provided by ISPs, grants the Commission only limited power when compared to FCC control over common carriers under Title II. According to George Foote, a lawyer who works closely with the FCC, this reclassification would be a major shift in FCC policy, and would run counter to the “decades-long efforts to deregulate.”
Net neutrality has become a hot-button issue as of late, and the debates have intensified since the U.S. Court of Appeals for the D.C. Circuit struck down previous FCC rules relating to equal treatment of Internet content. Judge David Tatel wrote for the court, stating that because “the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.” The reclassification of Internet as a utility under Title II, however, would do away with the exemption, and afford greater control to the FCC over ISPs, which would now be “common carriers.”
President Obama’s stance on classifying the Internet as a utility puts him in somewhat unfamiliar company, as Supreme Court Justice Antonin Scalia advocated this same approach in National Cable & Telecommunications Association v. Brand X Internet Services in his dissenting opinion. 545 U.S. 967, 968 (2005). It also puts side by side with former FCC chairman Reed Hundt and former FCC commissioner Michael Copps. Meanwhile, many of those across the aisle, including Republican Senator Ted Cruz and Republican House Speaker John Boehner oppose the President’s plan.
In the end, President Obama’s statements are only persuasive. The FCC is an independent agency and, as such, Obama recognized that this decision is “theirs alone.” As the war for the future of the Internet continues to rage on, however, net neutrality has gained a powerful ally.
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Eric Scharphorn is an editor on the Michigan Telecommunications and Technology Law Review, and a member of the University Michigan Law School class of 2016.