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ACTION ALERT: Tell Congress to Protect the Open Internet
Public Knowledge wants the FCC to protect consumers and extend broadband access to all Americans. However, we believe that before the FCC can do anything with regard to Internet access, it must have the authority to act. That authority is needed so that the FCC can use Universal Service Funds to support the roll-out of broadband in underserved communities, require accurate disclosures to consumers, ensure usability for people with disabilities, protect your privacy online, and promote a free and open Internet.
In the mid-2000s, the FCC declared that all broadband Internet access was an "information service" under Title I of the Communications Act. At the time, the FCC recognized that broadband Internet access offered by ISPs essentially consisted of two parts: a transportation part that merely moved bits from one place to another (a "telecommunications service" that would traditionally be regulated under Title II) and a more complicated part that included things like email, web hosting, and DNS services (an "information service" that would traditionally be regulated under Title I).
At the time the FCC thought that these two components were too closely related to be separated, and decided to lump them together under Title I. The Commission was confident that it would still be able to protect the public's ability to access the Internet because it would be able regulate Title I broadband Internet access under its "ancillary authority."
In 2008, a coalition of public interest groups including Public Knowledge insisted that the FCC punish Comcast's blocking of specific Internet protocols because the blocking violated the FCC's network neutrality principles. The FCC agreed and did punish Comcast. Comcast promptly challenged the FCC's decision in court. This included a challenge to the FCC's use of Title I ancillary authority to regulate broadband Internet access.
In January of 2010, after oral arguments before the DC Circuit Court suggested that Comcast might win the case, Public Knowledge filed comments with the FCC urging it to bring broadband Internet access back under Title II. We pointed out that Title II would give the FCC a much stronger legal basis to protect consumers online.
In April of 2010, the DC Circuit court found for Comcast. The court did not decide that Comcast had not violated the network neutrality principles. Instead, it rejected the FCC's use of Title I ancillary authority in punishing Comcast. This immediately brought everything that the FCC does in connection with the Internet - Universal Service Funding, required disclosures, usability, cyber-security, and network neutrality, not to mention large parts of the National Broadband Plan - into question. Again, Public Knowledge urged the FCC to bring broadband Internet access back under Title II.
In May 2010, the FCC endorsed a "Third Way" or "Title II light." FCC Commissioner McDowell promptly wrote a letter the Henry Waxman, Chairman of the House Committee on Energy and Commerce, questioning the decision. Public Knowledge quickly responded to refute its claims.
Although ISPs are challenging this decision, the FCC will only have to fight the battle once. This is because Title II provides a single source of authority for a number of important steps that the FCC needs to take in regard to broadband Internet access. More importantly with Title II, even if it is "light," the Court is likely to recognize the FCC's authority and allow it to protect consumers online and implement the important programs mentioned above.
5 Minutes With Harold Feld: Title II Classification for Broadband Internet Access