The Federal Communications Commission recently announced that they are planning to classify the Internet as a public utility under Title II of the Communications Act.
This is mixed news, as it at first seems like this is a step towards a more open and free Internet, but there are some possible downsides. The most obvious of these is the wording of Title II. Many of the regulations were made 80 years ago, and pertain to telephones more than they do to the modern Internet.
The other issue comes from Section 202 of Title II. This section says that common carriers cannot “make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service…” The problem here is the vague wording. Although the goes on to say that no advantage can be given to any particular people or group of people, it includes those words “unreasonable” and “undue”. These words are vague and paper thin when it comes to a court case. A simple, “Well they didn’t pay for the service. How is that undue?” would suffice to defend “slow lanes” and other such limits on free speech.
Also, the new classification would give the government the ability to essentially control the prices of Internet service providers. While the FCC has promised to forbear, or not enforce, certain aspects of the law that they would deem not applicable to the Internet, those laws would still apply to the Internet. They would be left hanging around waiting for someone to take advantage of them. This could place a clear stranglehold on free market enterprise, as the government could potentially demand that all ISP’s charge the same rates regardless of quality of service.
I’m not advocating for slow lanes or the ability to put certain websites above a certain pay grade. Those are clear limiters of free speech and those that advocate for them can hardly consider themselves proponents of a free Internet. I do, however, believe that laws made in the thirties are inadequate for a technology like the Internet.
The Internet needs its own classification, with its own rules and regulations. ISP’s that provide better services should be allowed to charge more, but this better service has to be across all websites. Slowing down particular websites is a form of censorship, and should be specifically outlawed. That better service should be clearly defined as speed of loading websites, not which websites are offered. No ISP should be allowed to deny its users access to a particular website. Those ISP’s that demand too much money will not be used. Those that offer the slowest Internet will similarly not be used.
A common fear is that non-regulated ISP pricing will lead to slower Internet, but the free market system will undermine that. People will not be willing to pay for useless services, and they will not be willing to pay too much. Companies that either charge too much or make their services too slow will find themselves without customers, and so without any way to stay in business. This would leave only those that provide good Internet service for a reasonable price.
The Internet needs specific laws that let the free market control the quality of service and simultaneously protect freedom of speech. Neither Section 706 nor Title II seems to address both concerns, so it makes sense that a unique law for the Internet would be needed.