A question of titles: Title I, Title II, and the future for net neutrality

Net neutrality has become a key political issue in the United States again, just two years after its regulator, the Federal Communications Commission (FCC), passed the landmark Open Internet Order. Advocates for the order’s reversal have pushed for a lighter-touch approach to internet regulation and seated the discussion on net neutrality rules in the wider political debate around executive regulatory authority. In May 2017, the FCC voted 2-1 to reopen debate on net neutrality with the intent to deregulate internet access within the United States.

What is so important about the Open Internet Order? After attempts by ISPs to violate net neutrality, the FCC stepped up, and established enforceable net neutrality rules. The key change that made this possible was how the FCC applied the categorizations Congress had developed in the Communications Act: Title I and Title II. Title I services (designed for enhanced  ‘information services’) are subject to fewer regulations, whereas Title II services (designed for the basic ‘common carrier’) are subject to more regulation.

Throughout the previous years, the US Courts repeatedly struck down FCC orders which tried to enforce net neutrality on services classified under Title I. These same courts consistently acknowledged that the FCC had the power to define how these services should be classified (Title I or Title II) but asked for consistency in terms of the classification (Title I or Title II) and the obligations that the service providers were expected to comply with (e.g., net neutrality). In summary, the judiciary told the FCC that if it wants enforceable rules that ensure internet access providers (IAPs) treat all traffic on equal terms, it first has to classify IAPs as basic common carrier service providers (Title II).

This is precisely what the FCC did in 2015 through the Open Internet Order. It established that the service that all IAPs provide is one of basic common carriage of data packets. In line with this type of service, IAPs should treat all data packets equally, regardless of whether they were parts of an email, a song, or a political website. The network had to remain a separate and neutral layer from content, and if IAPs infringed upon that separation, the FCC had acquired powers to make them comply. It was a bid to keep the internet open.

Opponents of the Order, including some FCC commissioners, believe that internet access providers should be regulated under Title I. They justify the push for a regulatory rollback and argue for a “return to the light-touch regulatory framework that served our nation so well during the Clinton Administration, the Bush Administration, and the first six years of the Obama Administration” (quoting FCC Chairman Ajit Pai, April 2017). However, there was no singularly dominant framework across all three administrations. This history is more complicated.

In fact, according to the FCC itself, almost all of the first forty million households in the United States came online under the regulatory protections of Title II. It is only later, in 2005, when the FCC reclassified internet service providers into Title I, that the ‘light-touch’ framework for which Pai advocates today came to be (FCC Technical Paper). Dial-up and DSL connections, as two of the three prominent early methods for connecting to the web, flourished under the regulatory provisions of Title II.

The situation started to change in 2000. In 2002, the FCC formally labeled cable companies that provided internet access as regulated under Title I, while telephone companies that provided the same service remained regulated under Title II. This tension between the Titles would shift three years later, in 2005, when the FCC voted to deregulate all internet access services by placing IAPs under Title I (enhanced ‘information services’).

This was the basis of the next decade of internet (de)regulation, and it is here where we begin to see the evidence of anti-competitive practices by internet service providers. Comcast was singled out in a prominent case in 2007 for throttling peer-to-peer sharing over the internet. Content providers and IAPs devolved into increasingly heated negotiations around paid prioritization and fast lanes. As telecom companies fought each other to preserve their profit margins, they also fought back against regulation from both the FCC and the Federal Trade Commission.

The FCC tried to implement net neutrality principles under Title I. They attempted voluntary principles in a policy statement from the Commission (FCC 05-151). Those principles failed to protect web users from IAPs that throttled traffic. The FCC passed network neutrality as a Title I regulation (FCC 10-201). That regulation was overturned in a legal challenge. Our options are narrowing, and the challenge is more clear than ever.

Regulating the internet has been a decades-long learning process. At its origin, the internet was a decentralized network that treated all content equally in part because the infrastructure upon which it relied – modern telephony – was regulated that way. As the internet has grown in penetration and use, internet access providers have looked into ways to leverage their gatekeepers’ position to their favor. This decision is another attempt by certain IAPS to gain advantage. It’s our responsibility to protect the open, innovative, creative internet that we have – this is the web we want.