ISPs Are Not Common Carriers
Since the U.S. District Court of Appeals for the District of Columbia issued its decision in Verizon v. Federal Communications Commission on January 14, 2014, there has been a big push to reclassify the Internet as a Title II telecommunications service. Unfortunately, many who have been raising this call don’t understand what that would mean.
Eighty years ago, the Communications Act of 1934 provided for a common carriage regime similar to that initially used in the late 1800s to regulate the railroad system. This law was the first attempt to provide regulatory continuity to the growing telephone industry as it began to reach across the nation and connect people thousands of miles away from each other through a copper-wire line. The Telecommunications Act of 1996 further regulated both the telephone and cable industries following the breakup of the Baby Bells. Today’s communications and technology services look nothing like those used by Great Grandma Minnie, who used “party-lines” not to “party like its 1999,” but to share infrastructure with her neighbors when making a call across copper-wire lines.
Title II of the Communications Act provides for telecommunications service as “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public.” The Communications Act defines an “information service,” such as the Internet, as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.”
In general, Title II prohibits practices the FCC deems to be unjust or unreasonable and imposes rate regulations on providers. It imposes a large regulatory burden on telecommunications providers, ranging from pole attachments to contract approvals, and the entire Title II encompasses more than 100 pages.
One can only imagine the disastrous effect reclassifying the Internet as a Title II telecommunications service would have on the Internet ecosystem. Had these regulatory burdens been imposed on the Internet in 1996, when it was first defined as an information service, the Internet everyone enjoys today might never exist. Keeping the Internet free of the regulatory burdens of Title II has allowed Internet service providers (ISPs) to improve capacity and speeds, as well as enabled content providers to use the improved bandwidth to offer more services to consumers.
The Internet currently encourages the development of new business models, which continue to spring forth across the country and around the world. Internet access allows job seekers to find employers, shoppers to find great deals and information to be shared. New technologies have moved into the classroom, including digital textbooks, interactive learning games, digital instruction personalized for each student, and online courses from colleges and universities.
The current light regulatory system in place for the Internet has also encouraged significant capital investments, which has given most Internet service providers the ability to reach access speeds of more than 100 percent of their advertised speeds, as noted in the FCC’s 2014 “Measuring Broadband” report. According to U.S. Telecom, broadband providers in the United States invested $68 billion in 2012 to increase broadband availability and improve service across the country.
In 2005, the FCC issued four “guiding principles” for network managers: open access to legal content, choice of applications, use of various personal devices, and easily obtainable service plan information from competing providers. In other words, the FCC has already spoken on how it should regulate the Internet.
The Internet exists primarily for the sharing of knowledge and ideas; it is America’s greatest renewable resource. Reclassifying the Internet as a telephone service under Title II would undoubtedly stifle innovation, limit the dissemination of knowledge and ideas, and adversely affect economic growth.
