On Thursday, President Trump’s press secretary Sean Spicer made it clear that the legal foundation of net neutrality, which prevents broadband providers from limiting access speeds to certain sides, is also on Trump’s hit list.
In remarks opening Thursday’s press briefing, Spicer complained that the 2015 move to reclassify internet providers as common carriers — putting them under the same open-access principles as phone companies — “opened their door to an unfair regulatory framework.”
That makes the existing ban on internet providers blocking or slowing legal sites or charging them for faster delivery look even deader than they already do under Trump. And that elevates the risk that a site or app you like might have to pay off your internet provider, or that you’d have to pay more to visit or use it.
What Spicer had in mind is what telecom wonks call “Title II”—the legal framework from the Telecommunications Act of 1934 that covers telecom services that provide open-ended access instead of limiting you to a defined set of connections.
Why would Spicer, Trump or anybody else care? Because the FCC voted to put internet providers back into this category in 2015 after earlier attempts to write open-internet rules were defeated in the courts.
Those previous net-neutrality failures were rooted in the FCC’s 2002 move to classify cable internet providers as “information services,” a newer category that may best describe AOL’s traditional dial-up online service. The commission later put other broadband technologies into this same bucket.
That matters because, like any other agency, the FCC can’t write rules unless Congress passes a law authorizing it to do that.
And courts have repeatedly ruled that the rest of the FCC’s enabling legislation — in particular, the Telecommunications Act of 1996, which added the information-service category — doesn’t provide the authority needed to support meaningful open-internet rules.
What’s to like and hate about that
In his remarks, Spicer bemoaned the common-carrier rules, saying they treat ISPs “much like a hotel or another retail outlet.” That’s… an interesting comparison, but the more apt one would be to a phone company.
Net-neutrality opponents point to such Title II provisions as its requirement for “just and reasonable” pricing.
When the FCC enacted the net-neutrality rules, it ruled out rate regulation and many other forms of common-carrier oversight set out in the 1934 law, but it could change its mind later on. Re-re-classifying internet providers would ensure that a future FCC can’t do that.
But it also risks a new round of litigation and court defeats — one thing I’ve learned over the decade and change that I’ve been covering…