Tim Wu’s Brilliant Gambit for solving Net Neutrality Regulation.

On the show today I made a passing reference to Tim Wu’s plan to solve the regulation of the Internet by using alternate justification.

After the show I got this email from Sandy1202

Could you explain what this article means on your show? I can’t follow it all.

Here’s a revision of what I wrote back to her.

It’s a legal trick. The court said in January that Section 706 of the 1996 Telecommunications Act was not a sufficient basis for net neutrality regulations.

They said the FCC could do two things. Come up with a new basis for the regulation, or reclassify broadband providers as telecommunications providers, so-called Title II classification.

Internet was classified as telecommunications until 2002, when ISP’s convinced the FCC to reclassify Internet providers as Information providers, similar to cable TV providers. This allowed the ISPs to close their networks to third party competitors.

The ISPs currently lobby very hard against classifying the Internet as telecom again.

So current FCC Chairman Tom Wheeler won’t reclassify Internet as telecom because he would face a fight. Instead he’s trying to strike a compromise. Use the rules that were thrown out in court, with the Section 706 justification, but change them to allow commercially reasonable discrimination. This is an attempt to appease ISPs by letting them charge, but still having some rules against discrimination. He hopes by doing this ISPs won’t take him to court, but there will be enough net neutrality regulation to satisfy others.

What Professor Wu suggests is a legal maneuver called arguing in the alternative. The idea is to put the old rules back in place, while still using Section 706 as a primary justification. HOWEVER, in addition you also justify the rules on the basis that the FCC has the authority, which they do, to classify ISPs as telecoms.

What that does is makes it so that if an ISP goes to court, they not only have to convince the court that Section 706 is not a proper basis for regulation but that the FCC doesn’t have authority to regulate them as a telecom. This would be very hard to prove, since the authority to regulate as telecoms is well-proved and Internet has been regulated as a telecom previously and fits the definition under Title II. (defined as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”)

Taking that rule to court might end up with the court throwing out the Section 706 justification but then LEAVING the telecom justification, resulting in all Internet providers being reclassified as telecom operators which is exactly what they don’t want.

Wu’s proposition is that the ISP’s won’t want to risk a lawsuit in that case, and will happily agree to Section 706 regulation rather than risk the reclassification.