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Assuming no last-minute shenanigans, the FCC will approve an order today reprimanding Comcast for “throttling” BitTorrent traffic (background here and here). This is extremely big news for several reasons — but primarily because it advances the ball on net neutrality in critically important ways.

For the foreseeable future, the real action on net neutrality will take place at the FCC. That’s because both the advocates and opponents of net neutrality have enough congressional support to maintain a filibuster, but not enough to overcome one.

So at the FCC level, there are two primary obstacles to imposing real net neutrality requirements — (1) legal; and (2) political. Tomorrow’s decision will help on both fronts — and will help a lot.

Legal

The most common legal argument against net neutrality rules is that the FCC currently lacks authority to enact them without additional legislation. I disagree with that argument, but it’s a fairly close question that requires some quick and dirty background on telecom law.

The FCC, like any agency, only has the power that Congress gives it. Thus, the scope of the FCC’s authority comes from the Communications Act (which incorporates the 1996 Act).

The Act however has a funny quirk — it sees the world in buckets. Under the framework the Act establishes, all communications services are classified and placed into a specific regulatory “bucket.” The type of regulations the FCC can adopt therefore depends upon what bucket it’s dealing with. (The buckets are actually statutory “titles” such as “Title II”, “Title III,” etc.).

The problem, however, is that the buckets are based on the assumption that a given company will only provide one type of service (remember that the Act was signed in 1934). For instance, there’s a bucket for “cable,” and for “telephone service,” and for “wireless/radio” (i.e., spectrum users). These buckets are outdated and don’t correspond to modern conditions where crazy things happen like cable companies providing “phone” and Internet services instead of just cable. For instance, your landline phone is regulated differently than your wireless phone because they fall within different buckets (cell phones are essentially glorified radios and thus fall within the “radio” regulatory bucket).

Obviously, these outdated categories create problems when new services emerge. The FCC’s answer to all this is a catch all bucket in which services are reclassified as “information services” (a/k/a Title I).

This bucket is generally considered unregulated. Thus, when the FCC wants to deregulate a service, it takes it out of the traditional regulatory buckets, and puts it in the “information services” bucket. Virtually all types of Internet access have been reclassified as “information services,” and are therefore largely unregulated. (This is what the 2005 Brand X Supreme Court case was about).

So what does all this have to do with net neutrality? Well, remember that broadband access is an unregulated information service — that is, it’s been put into the “catch all” bucket. To impose net neutrality requirements, the FCC therefore must slap a regulation onto a service that’s been reclassified and put into the deregulated catch-all bucket.

So that’s the million dollar question — can the FCC impose this type of regulation on an information service? For somewhat complicated reasons, there’s a pretty strong argument that it can (one that’s consistent with most of the case law), but companies like Comcast dispute that. For obvious reasons, they want to argue that the FCC can’t touch them.

With all that in mind, the really important part of tomorrow’s decision is not so much the Comcast case itself, but that the FCC is expected to recognize its legal authority to impose regulations on this type of Internet service. In doing so, it creates a strong legal foundation going forward for future net neutrality requirements (particularly given that courts traditionally defer to the FCC on this stuff).

But the fun doesn’t stop there — the decision also has important political benefits. Take it to the chorus.

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by publius

Some very good news on the net neutrality front — the FCC is all but certain to punish Comcast later this week for blocking BitTorrent traffic. This is a big deal — largely because it strengthens the political and legal foundation for full-blown net neutrality in the future (especially with a Democratic FCC).

Anticipating the loss, Republican FCC Commissioner Robert McDowell took to the Post’s op-ed page to criticize the imminent ruling. He’s not trying to affect this week’s decision (that’s hopeless). Instead, he’s looking ahead to the next battle.

His op-ed makes several arguments — some reasonable, others misleading. But I want to address one argument in particular — namely, the idea that the Internet succeeded because the government left it alone. He’s wrong about that — and it’s important to understand precisely why because it really strikes at the heart of the larger policy and philosophical questions underlying the more narrow net neutrality debate.

McDowell writes:

Our Internet economy is the strongest in the world. It got that way not by government fiat but because interested parties worked together toward a common goal. As a worldwide network of networks, the Internet is the ultimate “wiki” environment — one that we all share, build, pay for and shape. Millions endeavor each day to keep it open and free. Since its early days as a government creation, it has migrated away from government regulation.

Actually, the Internet is successful because the government regulated the bejesus out of it. That doesn’t mean regulation is awesome — it just means that the government got this particular regulatory scheme right.

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