The next few months will be full of bitter dissent regarding the FCC\u2019s net neutrality rules, how they should be enforced, and indeed whether they should exist at all. Several primary arguments against the rules as they stand have appeared as talking points or recurring themes; they are worth considering seriously and refuting definitively if possible. That is what I intend to do here.<\/p>\n
One quick note: the full text of the proposal isn\u2019t available yet, and may affect a few of these items. I\u2019ll update this article as soon as the rules are public and I\u2019ve had a chance to read them.<\/p>\n
TL;DR: A law from another time, yes, but a strong one that\u2019s been updated<\/strong><\/p>\n The age and regulatory environment of the statute under which the current net neutrality rules is a common refrain. Title II is in fact part of the far-reaching Communications Act of 1934, which was indeed instated during a period of depression and monopoly \u2014 but characterizing it that way is a bit like saying the Declaration of Independence is an \u201cEnlightenment-era rule written by anti-government extremists.\u201d<\/p>\n Industries that carried products across state lines, such as railways, had for many, many years been subject to special regulations as \u201ccommon carriers\u201d in order to ease interstate commerce. These regulations exist at the federal level and split authority with states, which have their own laws for how companies comport themselves within their borders.<\/p>\n Telephone service had begun crossing state lines by this time in 1934, and a unified body for regulating it and the companies that provided it (which were indeed acknowledged monopolies) was called for: hence, the FCC. And Title II is the part of the law that gives the agency authority over common carriers providing interstate or foreign communications services.<\/p>\n The FCC and the 1934 act were not solely created to break up Ma Bell or AT&T; they extended existing and working federal rules for interstate commerce to an industry that was growing to such an extent that they had become necessary. Of course it would be silly to apply those same rules to a vastly different era \u2014 that\u2019s why we had the Telecommunications Act of 1996, which extensively modernized the original.<\/p>\n Notably, no one seems to complain about all the other businesses, including some broadband connections and mobile services, that have been governed under Title II for years and will continue to be so after this. Apparently depression-era monopoly rules are fine for those.<\/em><\/p>\n It\u2019s worth mentioning here that if people are really afraid of broadband providers being governed by anti-monopoly authorities from the early 20th century, that is a precise description of the FTC, a bona-fide antitrust body established in 1914, and the agency that regulatory authority would return to should the FCC be relieved of it.<\/p>\n TL;DR: It was \u201cfettered\u201d for years and did great \u2014 plus, that part of the law isn\u2019t law, and it\u2019s about porn<\/strong><\/p>\n You can read the Act here; only one section concerns the internet, and it does indeed say this:<\/p>\n It is the policy of the United States\u2026to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.<\/p>\n<\/blockquote>\n Seems pretty straightforward, but context matters: 1996 was a very different time. Broadband was extremely rare and dial-up was the rule. The very fact that most people reached their internet provider through<\/em> a telecommunications provider (regulated under Title II) made things fundamentally different. Think AOL and Earthlink, not NBC Comcast Universal (or, for that matter, Oath).<\/p>\n When the internet provider is essentially also<\/em> the telecommunications provider, in charge of the cables, DNS, and so on, that changes things a great deal.<\/p>\n The argument is that Title II was never meant for broadband services, and that the industry flourished under the \u201clight touch\u201d of Title I. Kind of an inconvenient fact, then, that DSL \u2014 the most popular broadband service by far for many years \u2014 was regulated under Title II until 2005! In fact, some major DSL providers petitioned to stay under Title II at the time.<\/p>\n Do you remember the 1996-2005 era of internet use and provision as being a particularly oppressed one? It was in fact a period of unprecedented growth and economic prosperity, which the Title II regulation of a huge proportion of Americans\u2019 internet access clearly did little to dampen.<\/p>\n Also, and this is more of a \u201cby the way\u201d thing, that part of the 1996 Act is actually under Section 230, \u201cProtection for private blocking and screening of offensive material.\u201d Read the whole thing and you find it\u2019s basically a diplomatic way of saying that that things like porn, as on cable TV, shouldn\u2019t be blocked by federal regulation, but by the likes of parents and computer administrators. This isn\u2019t a joke, it\u2019s an important part of the Act that prevents censorship, but it really isn\u2019t about the issue at hand.<\/p>\n Lastly, but worth noting: it also isn\u2019t actually a law, just an advisory section intended to help guide interpretation<\/em> of the law. And courts, whose job it is to interpret law, have long known this and still accepted \u2014 even encouraged \u2014 Title II regulation.<\/p>\n2. The 1996 Telecommunications act says the internet should be unfettered by state or federal regulation<\/h2>\n
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