America’s Net Neutrality Question: Should the FCC Define the Internet as a ‘Common Carrier’?

The Washington Post’s editorial board looks at America’s “net neutrality” debate.

But first they note that America’s communications-regulating FCC has “limited authority to regulate unless broadband is considered a ‘common carrier’ under the Telecommunications Act of 1996.”

The FCC under President Barack Obama moved to reclassify broadband so it could regulate broadband companies; the FCC under President Donald Trump reversed the change. Dismayed advocates warned the world that, without the protections in place, the internet would break. You’ll never guess what happened next: nothing. Or, at least, almost nothing. The internet did not break, and internet service providers for the most part did not block and they did not throttle.

All the same, today’s FCC, under Chairwoman Jessica Rosenworcel, has just moved to re-reclassify broadband. The interesting part is that her strongest argument doesn’t have much to do with net neutrality, but with some of the other benefits the country could see from having a federal watchdog keeping an eye on the broadband business… Broadband is an essential service… Yet there isn’t a single government agency with sufficient authority to oversee this vital tool. Asserting federal authority over broadband would empower regulation of any blocking, throttling or anti-competitive paid traffic prioritization that they might engage in. But it could also help ensure the safety and security of U.S. networks.

The FCC has, on national security grounds, removed authorization for companies affiliated with adversary states, such as China’s Huawei, from participating in U.S. telecommunications markets. The agency can do this for phone carriers. But it can’t do it for broadband, because it isn’t allowed to. Or consider public safety during a crisis. The FCC doesn’t have the ability to access the data it needs to know when and where there are broadband outages — much less the ability to do anything about those outages if they are identified. Similarly, it can’t impose requirements for network resiliency to help prevent those outages from occurring in the first place — during, say, a natural disaster or a cyberattack.

The agency has ample power to police the types of services that are becoming less relevant in American life, such as landline telephones, and little power to police those that are becoming more important every day.
The FCC acknowledges this power would also allow them to prohibit “throttling” of content. But the Post’s editorial also makes the argument that here in 2023 that’s “unlikely to have any major effect on the broadband industry in either direction… Substantial consequences have only become less likely as high-speed bandwidth has become less limited.”


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