EFF Changes Position On Net Neutrality: Recognizes FCC Must Act, But Narrowly
from the makes-sense dept
For years, the EFF has pushed back against the FCC’s attempts to preserve net neutrality, reasonably worrying that it might open the door to the FCC further meddling in the internet where it had no real mandate. We here at Techdirt have been similarly concerned. As we’ve noted, net neutrality itself is important, but we were wary of FCC attempts to regulate it creating serious unintended consequences. However, over the past few years, the growth in power of the key broadband internet access providers, and their ability to degrade the internet for profit, has made it quite clear that other options aren’t working.
Thus, the EFF has — quite significantly — announced that it has changed its position on the FCC’s role in net neutrality, starting with Title II reclassification, combined with a strong forbearance, which effectively blocks the FCC from claiming too much power to regulate other aspects of the internet:
We want to be very, very clear: the FCC?s regulatory role should be narrow and firmly bounded. Network neutrality rules should be limited to specific prohibitions?such as blocking, discrimination among applications and prohibiting special access fees?potentially combined with a renewed ?open access? requirement that would foster local competition, and no more.
Luckily, the FCC has a way to bind itself and thereby limit its own regulatory reach. It?s called ?forbearance.? While forbearance doesn?t set the limits on the regulatory agency in stone as Congress could, it does require the FCC to make a public commitment that is difficult to reverse. If it ever wants to change course, it has to engage in a contentious and tedious public process of notice and comment. We?ll have more to say about these very basic regulations in our comments on the FCC?s proposed rules, which we will also unpack in upcoming posts.
To get to a place where it can actually enforce neutrality rules and do nothing further, however, the FCC first needs to do one important thing: reverse its 2002 decision to treat broadband as an ?information service? rather than a ?telecommunications service.? This is what?s known as Title II reclassification.
Part of the problem with the net neutrality fight is that there’s a lot of nuance and technicalities involved. Many — especially in the telco world — point to the fact that Title II reclassification would grant the FCC much greater ability to regulate all parts of the internet, but they ignore the fact that basically everyone pushing for reclassification is doing so with the forbearance process in mind. And, yes, the whole forbearance process opens up a whole new avenue for potential game playing and abuse, but as the EFF is recognizing, this seems like the only real near-term solution to the current situation in which the big broadband companies are looking to hold the rest of the internet hostage.
It’s worth noting that this is, in no way, an “ideal” solution. There’s a tremendous amount of details and nuances involved in all of these decisions — almost none of which you’ll read about in the press (and, of course, good luck finding anything about net neutrality on TV news). The reality is that this is what we’re left with after a decade or more of failed broadband policy, which has brought us to the situation today where the broadband access providers have basically set themselves up as being able to set up toll booths to doublecharge, not because of any innovation or improved service on their part, but solely by nature of themselves getting so big that they can make life difficult for internet services.
There’s one other key point in the EFF’s “change of heart,” which is the response to anyone who claims Title II grants too much power to the FCC (leaving aside the question of forbearance). And that’s that under the appeals court ruling back in February, it was made clear that the FCC already has tremendously broad powers to regulate other aspects of the internet under Section 706. As some noted after that ruling came out, while many people were talking about how the court rejected net neutrality, they may have missed how much the court broadened the FCC’s powers under Section 706. The end result is that we should be equally worried about the FCC abusing 706, where its powers are dangerous and also ineffective at protecting net neutrality, while focusing on putting in place a better regime under Title II with a strong forbearance plan:
Some have said that reclassification would give the FCC too much power to regulate the Internet. That very concern is why forbearance is so important. Nor is it the case that the FCC has very limited power now?the D.C. Circuit affirmed that the FCC has broad powers to ?promote competition? which could be just as vulnerable to misuse by a future FCC as any regulatory authority granted via a ?common carrier? reclassification. More important than the potential breadth of power, however, is the fact that the powers that the FCC has now don?t match the real goal: protecting the neutral Internet we expect and need to flourish. Reclassification, combined as it must be with a commitment to forbear from imposing aspects of Title II that were originally drafted for 20th century telephone services and that don’t make sense for the Internet, can give the FCC the right tool for the job without giving it regulatory tools it doesn?t need and may dangerously misapply.
In other words, while there are dangers of giving the FCC too much power under Title II, those can be dealt with via forbearance, while at the same time actually allowing it to protect net neutrality. Under the current system, we have the worst of both worlds. Section 706 has now been interpreted such that the FCC has powers that are too broad in regulating a variety of aspects of the internet… but without the power to actually protect net neutrality!
Given that reality, it does seem that the best path forward has to be reclassification under Title II, with clear forbearance that limits the FCC’s powers under Title II to just the situations where it can prevent net neutrality abuses.