In early April, a federal court stripped the FCC of its power to regulate the Internet. Now it seems the Obama administration is considering doing nothing in response, giving power over our Internet to the greedy phone and cable companies.

To understand how we got to this infuriating juncture we need a bit of a history lesson.

Back in the Bush years, the big cable and phone companies lobbied successfully for the Bush administration’s FCC to classify broadband Internet services as "information services" instead of "telecommunications services." Information services (or Title I services) were defined by Congress in the Telecommunications Act of 1996 as things like electronic publishing while telecommunications services (or Title II services) were defined as two-way communications. The FCC has broad regulatory authority over the latter but not the former, and the Internet was meant to be classified as a telecommunications service.

However, the Bush FCC decided it wanted to voluntarily cripple itself. It decided to classify broadband Internet service as an information service, not a telecommunications service. The Bush FCC thought they could continue regulating the Internet effectively under information service classification. And the Supreme Court upheld the Bush FCC’s right to "reclassify" the Internet in this way [pdf], leaving open the door to reversing the policy in the future.

Fast forward to the Obama administration. Internet service providers are regularly violating net neutrality, and the FCC is involved in a suit against Comcast for blocking legal traffic on their network. Every provider has a business plan ready to go that exploits users on a non-neutral network, charging users more for access to "premium" websites and charging startups a large percentage of their profits to use the network.

To their great credit, the Obama administration put broadband and net neutrality front and center in their communications policy priorities. Both Obama and his pick to lead the FCC, Julius Genachowski, have been strong and vocal supporters of increased broadband access and net neutrality. And the administration and the FCC rolled out an ambitious national broadband plan to subsidize Internet growth in underserved areas. The plan treats broadband like the infrastructure it is [pdf], but in order to do that, the FCC must have the authority to regulate it like infrastructure or public utilities.

The court ruling on April 6th against the FCC in their Comcast suit ended the Bush-era follies. By classifying the Internet as an information service, the court ruled the FCC has no authority to tell Comcast what to do on its network. While the Bush FCC thought this wouldn’t be the case, the court disagreed, making it clear that like so many other things Bush did, the legal theory under which the FCC was operating was baseless. And with that ruling, the court threw not only net neutrality but the national broadband plan into great danger.

The Obama administration and the FCC now have a choice. They can do nothing accept Bush’s handicapping and an unregulated Internet, or they can "reclassify" broadband as a telecommunications service – which the Supreme Court said was in their power – fixing a Bush mistake and returning the Internet to the regulatory framework Congress intended. (By the way, reclassification wouldn’t mean new regulations on the Internet. The Telecommunications Act of 1996 gives the FCC authority to decline to regulate telecommunications services at its discretion, meaning reclassification would give the FCC legal authority to regulate, but not compel them to do so. This would give the public a needed firewall against predatory phone and cable companies but not mean a host of new regulations on the Internet automatically.)

The Washington Post is reporting that Chairman Genachowski is considering doing nothing:

The chairman of the Federal Communications Commission has indicated he wants to keep broadband services deregulated, according to sources, even as a federal court decision has exposed weaknesses in the agency’s ability to be a strong watchdog over the companies that provide access to the Web.

…FCC Chairman Julius Genachowski is expected to respond soon to the court ruling. Three sources at the agency said Genachowski has not made a final decision but has indicated in recent discussions that he is leaning toward keeping in place the current regulatory framework for broadband services but making some changes that would still bolster the FCC’s chances of overseeing some broadband policies.

The bit about "making some changes" under current classification to help the FCC regulate broadband is a dodge. As one leading telecommunications lawyer and advocate put it, "The FCC would basically be telling everyone they’re going to do net neutrality, but they’ll base their rule on a legal framework guaranteed to fail in court. The public won’t realize they built a mansion called net neutrality on a foundation of sand until it’s too late. The big telecom companies would be very happy with this idea."

We can’t fiddle around the edges and we can’t do nothing. This trial balloon must be shot down.

Doing nothing would be catastrophic. Though it might seem outlandish, doing nothing means that, for example:

  • Comcast could block your tweets if you criticize, say, their planned merger with NBC
  • Internet service providers could reserve the right to approve every political campaign online, as phone companies do with text message short codes today
  • RCN could, if your start up is successful, threaten to block access to it unless you share one-third or more of your revenues with them (one-third would not be unheard of – Apple’s App Store takes 30% off the top of the purchase price from apps it sells)
  • A phone company could block FDL and The Seminal, Talking Points Memo, and Moveon.org (and its emails) because they made an "exclusive" deal with another political content provider, or charge more for access to these sites while leaving sites like Fox News cheap because Fox has the money to pay the phone company for premium delivery

Marvin Ammori, noted telecom professor and advocate, has more.

No matter how egregious, no matter how far a phone or cable company went, if the FCC doesn’t reclassify broadband they would be powerless to stop these abuses. Not to mention their national broadband plan to expand Internet access to millions of Americans who now lack it would be over.

The path forward is clear. The FCC must fix the Bush-era mistake and reclassify broadband as a telecommunication service.

Leading figures in Congress, including Commerce Committee members Markey and Rockefeller, have called on the FCC to reclassify. Fellow FCC Democratic commission member Michael Copps has called for reclassification, meaning Genachowski can get a majority vote for the move if he brings it up. Op-eds in The NY Times, LA Times, Financial Times and other leading papers have called for reclassification. And over 250,000 people have submitted comments to the FCC urging them to reclassify.

There is clear support for reclassification. It’s not a radical policy and wouldn’t mean huge new regulations on the Internet. And Chairman Genachowski has the clear authority to put it into place. All that’s lacking is the political will.

Doing nothing and leaving the Internet unregulated is not acceptable. We’ve seen what deregulation and non-regulation do to our health care system and our financial system. The business model of phone and cable companies making money by discriminating online is not one America should support. The Internet is the most important communications medium of our time. It’s unacceptable to leave it unregulated and at the mercies of greedy corporations.

Chairman Genachowski, reclassify broadband and protect net neutrality. To do less would throw the Internet to the wolves.

Update:

McJoan at Daily Kos and Marvin Ammouri at Balkinization have more.