Reaction to FCC Ruling that the Internet is a “Public Utility”

Cyrus Moslemi
J.D. Candidate 2016, UCI Law

In 2010, the Federal Communications Commission attempted to enact a policy where broadband would be free of data throttling, blocked pages, and payment for faster access to particular websites. However, in Verizon Communications Inc. v. FCC (2014), the D.C. Circuit Court of Appeals held that the FCC could not enact its policy in its entirety as certain portions could only be applied to common carriers. Because the FCC previously classified Broadband under Title I of the Communications Act of 1934, it had forfeited the right to regulate broadband as though it were a common carrier. Since then, the FCC looked at ways to enforce net neutrality and on February 26, 2015, voted 3-2 to classify broadband under Title II of the Telecommunications Act of 1996, which classifies its services as public utilities. The FCC claimed that it now institutes “strong, sustainable” rules bolstering net neutrality.

Since the ruling, both proponents and opponents of net neutrality have stuck to their guns. Proponents believe that the FCC ruling ensures free-speech, innovation, and competition. In regards to the recent ruling, the ACLU’s legislative counsel Gabe Rottman said, “this is a victory for free speech, plain and simple. Americans use the Internet not just to work and play, but to discuss politics and learn about the world around them. The FCC has a critical role to play in protecting citizens’ ability to see what they want and say what they want online, without interference. Title II provides the firmest possible foundation for such protections. We are still sifting through the full details of the new rules, but the main point is that the Internet, the primary place where Americans exercise their right to free expression, remains open to all voices and points of view.” Moreover, the Chairman of the FCC, Tom Wheeler stated, “the action that we take today is an irrefutable reflection of the principle that no one — whether government or corporate — should control free open access to the Internet.”

On the other hand, opponents of net neutrality believe that there was no need for the FCC’s ruling and that it was instead a step backward in the development of broadband. They claim that the FCC’s ruling actually stifles both competition and innovation. The co-chairs of Broadband for America, John Sununu and Harold Ford Jr., said, “the FCC’s decision to impose obsolete telephone-era regulations on the high-speed Internet is one giant step backwards for America’s broadband networks and everyone who depends upon them. These ‘Title II’ rules go far beyond protecting the Open Internet, launching a costly and destructive era of government micromanagement that will discourage private investment in new networks and slow down the breakneck innovation that is the soul of the Internet today.”

Further, Ajit Pai, republican commissioner of the FCC, predicted that the ruling would bring greater costs to consumers and that the only reason the FCC approved the proposal was “because President Obama told [them] to.” Michael Powell, President of the National Cable and Telecommunications Association stated, “the FCC took one of the most regulatory steps in its history. . . the FCC has taken the overwhelming support for an open Internet and pried open the door to heavy-handed government regulation in a space celebrated for its free enterprise. The Commission has breathed new life into the decayed telephone regulatory model and applied it to the most dynamic, free-wheeling and innovative platform in history.”

It would seem that proponents and critics of the FCC’s recent ruling are on polar-opposites in regards to the predicted economic outcome of net neutrality; and, it doesn’t seem like that will change soon. Indeed, both commentators and the FCC believe the net neutrality ruling will be opposed fiercely in court.