The Nuclear Option For Broadband

So, the broadband providers — in principle — would like to have the right to control what passes through their pipes. Of course, we, the people, would not be benefitted in they could slow down Skype or BitTorrent packets, or if NetFlix was slower than CBS movies. Net neutrality is a social good, but might irk the providers.

The recent decision of the US Court Of Appeals ruled narrowly that the FCC does not have the mandate to enforce net neutrality on broadband providers, because these are treated as Title I, or experimental, services. The FCC does have the right to regulate Title II communication services, so-called ‘common carriers’:

Eric Savitz, Will FCC Choose “The Nuclear Option” In Net Neutrality Fight?

Bernstein Research analyst Craig Moffett writes today in response to the ruling “raises grave doubts” about whether the FCC can demand carriers provider an open Internet. He notes, though, that Net Neutrality has been supported by the Obama Administration and FCC Chairman Julius Genachowski. Moffett things the FCC has three choices on how to proceed:

• Ask Congress to pass legislation giving the FCC the needed authority.
• Ask Congress to pass Net Neutrality legislation.
• Reclassify broadband services to bring them under FCC jurisdiction.

The latter option is what Moffett describes as the “nuclear option,” and would involve the reclassification of broadband service to be what’s known as a Title II service, or a common carrier. Broadband is now designated as a Title 1 service, which carriers fewer regulatory restrictions.

In theory, either of the first two would suffice, but I wonder if anyone thinks broadband is experimental, and that it shouldn’t be considered a common carrier, like the phone system is. Of course, the telecoms want it to be less regulated, so they can charge us usorious rates — I bet they came up with the ‘nuclear option’ terminology — so I think that the Feds should reclassify the services as Title II.