Only Title II will ensure fairness among ISPs

Last Wednesday, more than 300,000 people contacted the White House and their representatives in Congress on a day of action calling for a free and open Internet. More than 1.4 million people have submitted comments to the Federal Communications Commission (FCC) on the need for strong network neutrality rules.

The message is overwhelmingly clear: Americans don’t want fast and slow lanes on the Internet. They want rules that do not allow Internet service providers (ISPs) like Comcast and Verizon to block or slow down websites and services or to provide better service to Internet companies that pay them an access fee.

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The public has spoken, and now our government should listen. Unfortunately, the FCC’s current proposal allows ISPs to charge access fees and opens the door to technical discrimination. Lawmakers who want to fix this should call on the FCC to adopt meaningful network neutrality rules based on Title II of the Communications Act. In fact, Title II provides the only legal path to get the rules that Americans want.

We know we need Title II, because the FCC has already tried other avenues without success. In 2010, the FCC used Section 706 of the Telecommunications Act to adopt the Open Internet Rules. These rules effectively banned access fees and certain forms of discrimination. But in January, the Court of Appeals for the D.C. Circuit struck them down. The court found that Section 706 does not allow the FCC to impose these kinds of rules on entities — such as ISPs — that are not legally classified as “common carriers” under Title II. The court is clear: If the FCC regulates under any authority other than Title II, it must give ISPs “substantial room” for “discrimination,” including “unreasonable discrimination,” plus the power to charge access fees.

The court’s decision left the FCC with a clear solution. If the FCC wants meaningful network neutrality rules, it needs to reclassify ISPs as “common carriers” and adopt those rules under Title II. Unfortunately, the FCC proposes to stick with Section 706. The current proposal opens the door to discrimination and allows ISPs to strike deals with selected Internet companies, so that their content loads faster or does not count against users’ monthly bandwidth caps. This is a significant reversal from the Open Internet Rules and would fundamentally change the environment for Internet innovation and investment.

The FCC’s backstop is to make sure that deals and other discriminatory measures are at least “commercially reasonable,” a vague and unpredictable standard. Companies or users that are harmed need to complain to the FCC and then spend years litigating the meaning of “commercially reasonable,” fighting ISPs that have more telecommunications lawyers than most startups have employees.

Unless you are one of those ISPs, or their lawyer who bills by the hour, the proposed network neutrality regime is a nightmare. It provides no certainty to entrepreneurs and investors, creates high costs of regulation and tilts the playing field against anybody — startups, users, nonprofits — who can’t afford long and costly proceedings at the FCC. Because the rules are so vague, they give the FCC ample discretion to decide these specific cases and so interfere with competitive markets for websites and services. This regime is an invitation for FCC overreach.

The FCC does not have to go down this rabbit hole. If the FCC classifies ISPs as common carriers under Title II, it can adopt bright-line rules that ban blocking, application-specific discrimination and pay-to-play access fees. Such rules would provide certainty to the market, create low costs of regulation and make it feasible for users, start-ups and nonprofits to navigate the process.

Not surprisingly, the loudest opponents of Title II are the ISPs. They claim that Title II is a slippery slope to heavy-handed regulation. But giving the FCC authority for broader regulation under Title II upfront is the only way to adopt bright-line rules. Once these rules are in place, they limit FCC discretion in specific cases and actually prevent FCC overreach. While not all Title II rules are appropriate for Internet services, Title II allows the FCC to “forebear from” regulations that are not needed to protect consumers. The FCC already forebears from unnecessary regulation of mobile telephony and long-distance services, which are subject to Title II. Proponents of network neutrality agree that the FCC should use the same light regulatory touch with ISPs.

Fortunately, it’s not too late. The FCC still has the power to classify ISPs as common carriers under Title II and enact the network neutrality rules that Americans want. It just needs the political will. Millions of users, startups, investors and companies already support Title II, including Kickstarter, Etsy, Neflix and Vimeo, as well as consumer groups and tech trade associations such as CCIA and COMPTEL. Now it’s up to lawmakers to ask the FCC to do the right thing. Dozens of senators and congressmen have already done so.

The choice is clear. The FCC’s current proposal under Section 706 does not protect network neutrality, creates enormous costs and invites FCC overreach. In contrast, Title II gives us meaningful network neutrality rules, a high degree of certainty, low costs and little risk of regulatory overreach.

If lawmakers want to adopt meaningful network neutrality rules, Title II is the only way.

Van Schewick is a professor at Stanford Law School and director of the Stanford Law School Center for Internet and Society. She is the author of Internet Architecture and Innovation. You can follow her @vanschewick.

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