Beyond Net Neutrality: The Importance of Title II for Broadband

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In its 2015 Open Internet Order, the Federal Communications Commission reclassified broadband internet under Title II of the Communications Act, establishing broadband providers as common carriers under the same framework as our telephone networks. By embracing its Title II authority and creating clear, bright line rules against blocking and discrimination, the FCC enacted the strongest net neutrality rules in history.

However, open internet principles were not the only value in classifying broadband under Title II. Like our telephone networks used to be, access to broadband has become necessary for full participation in society. Therefore, Title II classification is critical in protecting our fundamental values of universal service and consumer protection when accessing broadband networks.  While the FCC forebore from applying the majority of Title II to broadband networks, the agency kept a number of provisions in place to ensure consumers have ubiquitous and affordable connectivity, privacy, and other consumer protections when online.

During a speech last week, FCC Chairman Ajit Pai announced his plans to reverse Title II classification on broadband networks, stating that this is not the appropriate framework to promote the open internet. While his argument is incorrect, Chairman Pai also failed to mention the host of other benefits and protections under Title II consumers have come to rely on when accessing today’s communications networks.

Universal Service and Deployment

Universal service, the policy of ensuring ubiquitous and affordable connectivity, is a core value consumers expect from communications networks. Key provisions in Title II promote both access to infrastructure by non-legacy providers and affordability for consumers to our traditional phone networks. Without Title II classification, these rules would not apply to broadband services. Title II protects competitive broadband service providers’ ability to attach their infrastructure to poles. Section 224 of the Communications Act authorizes the Commission to regulate pole attachments, which are critical to deploying broadband infrastructure. Service providers rely on utility poles to attach a variety of wired and wireless broadband technologies such as cable, fiber, and antennas. Obtaining leases and permits to attach infrastructure to poles can be expensive particularly in rural areas where there are more poles per mile. However, under section 224, the Commission requires legacy telecommunications carriers to provide non-legacy broadband service providers (which now includes pure broadband service providers such as wireless carriers) nondiscriminatory access to poles and other rights of way owned by utilities. Ultimately, these rules ensure broadband service providers can effectively deploy their infrastructure and provide access to consumers

The second component of universal service is affordability. Access to communications networks is not enough if consumers cannot afford them. Under Section 254 of the Communications Act, the FCC established a Universal Service Fund to promote universal access by providing subsidies for the deployment and adoption of telecommunications services. With Title II classification, the Universal Service Fund now applies to broadband networks (with a few provisions the FCC forebore from adopting). As a result, the FCC took steps last year to expand the Lifeline program, which traditionally provides subsidies for low-income Americans to access telephone service, to now provide subsidies for internet access. The expansion allows eligible telecommunications carriers including broadband-only providers to offer subsidized broadband services to low-income consumers. However, if broadband were to lose its Title II classification, certain providers may no longer qualify to offer subsidized broadband services.

Consumer Privacy

Protecting the privacy of consumers on communications networks is one of the basic hallmarks of our society. Section 222 of the Communications Act requires telecommunications carriers to protect customer proprietary network information. Title II classification means that customer proprietary network information now applies to consumer data over broadband networks. As a result, the FCC used its authority under Section 222 to adopt rules that established important consumer privacy protections for broadband providers. The rules prevented broadband providers from tracking the online behavior of customers without their permission. Unfortunately, these broadband privacy protections were dismantled due to a resolution passed by Congress and signed by the the President, which prevents any substantially similar rules from being created by the FCC.

Despite the Administration’s efforts to remove privacy rules from broadband networks, Title II still provides the FCC with a statutory framework to enforce broadband privacy, just as it did the moment the FCC reclassified broadband. Consumers can file complaints before the FCC citing egregious behavior by their broadband service provider’s control over their data in violation of Section 222. Therefore, the Commission can still bring enforcement actions against broadband service providers on a case-by-case basis, which it has done in the past. In addition to enforcement actions, the Commission can release guidelines and best practices for broadband providers to follow in protecting consumer data. Section 222 also gives the FCC authority to promulgate new broadband privacy rules in the future - an authority other agencies like the Federal Trade Commission lack.  

Privacy is a protection consumers have come to expect regardless of if they are using a telephone network or a broadband network. As consumers continue to rely on the internet for everyday activities such as applying for jobs, checking medical records, and completing homework, protecting their online privacy has never been more important. It is no surprise that days after voting to repeal the FCC’s broadband privacy rules, 50 House Republican Members of Congress sent a letter to FCC Chairman Pai directing the agency to use its Title II authority to continue protecting consumer broadband privacy.

Additional Consumer Protections

In addition to universal service and privacy, there are other consumer protections Title II requires from broadband networks:

  • Section 255 ensures consumers with disabilities have equitable access to telecommunications networks. With Title II classification, broadband providers must make their networks compatible for consumers with disabilities. Without Title II, these protections would not exist for consumers with disabilities.
  • Consumers also expect their bills for accessing communications networks to be transparent without hidden fees or unauthorized charges. Under Section 201, the Commission enacted truth-in-billing rules requiring telecommunications carriers to disclose all fees and surcharges associated with their service. With Title II classification, the FCC applied enhanced transparency rules to broadband networks (with exceptions made for small broadband service providers). These rules require broadband providers to disclose monthly service charges, other fees and surcharges, and data caps and other allowances. Without these rules, consumers would not be fully informed to all the fees and surcharges associated with their broadband service.

Conclusion

Title II classification is critical for protecting an open internet, but it is also just as important for preserving our values of service to all Americans, including universal service and consumer protection. Broadband has the power to transform people’s everyday lives. Title II classification of broadband must remain in place to continue protecting the fundamental values of our communications systems.

Image credit: Flickr user Stephen Melkisethian. Taken on November 6th, 2014.

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