No, the FCC Didn’t make the Internet a Public Utility – So what actually happened?

The internet buzzed with celebration at the FCC 3–2 vote to approve of the new Title II-backed “net neutrality” regulations last week. You can read about it in the press release dated February 26, 2015. Despite how the story’s been spun, it isn’t exactly the win it appears to be.

Don’t get me wrong; this decision is important and this is a historic, significant win for the internet as we know it. After the D.C. Circuit ruled in favor of Verizon in the case of Verizon v. FCC, it looked like the concept of net neutrality was in very real peril. Last week’s win is crucial to the war, but there are likely going to be many more battles before an outcome arrives. Still, there are a ton of heroes in here:  advocacy groups, small businesses, progressive big businesses and a host of supporters comprising one of the largest online movements ever.

While it’s a big win, it’s frustrating to research and discover that the internet wasn’t exactly made into a “public utility”, as reported, like, everywhere. Internet providers are now going to be reclassified as “telecommunications services” under Title II, what we currently refer to as Internet Service Providers/ISPs aka Comcast & Verizon. Most people don’t immediately grasp that the classifying ISP’s as service providers doesn’t make them the legal equivalent of a utility.

It’s a subtle enough distinction that almost no one online reported this important detail. In fact it was most commonly misreported.

You can brush up on the history of the net neutrality fight by following the links and reading quotes gathered at The Verge.

The New York Times
The Hill



The above examples are only a sample of the long list of unintentionally yet blatantly wrong headlines. Nilay Patel wrote perhaps one of the most convincing arguments for making the internet a utility, written last winter(2014, Verge).

The Title II decision allows the FCC to reclassify all ISP’s as “common carriers,” which sounds like a public utility – but it isn’t. As John Bergmayer from Public Knowledge put it like this:

This misapprehension comes about because the most prominent telecommunications common carriage service of the past—telephone service—also was regulated as a utility. But utility regulation typically carries with it a number of features not present in any current proposals for broadband—most notably, thorough price regulation and detailed local regulation of service quality, customer service responsiveness, and so forth.

What’s being described sounds almost exactly like a public utility.

As Bergmayer wrote, “even full common carrier regulation is not identical to utility regulation.”

Aspects of Title II seem like utility-style regulations. The FCC is able to use a concept called forbearance to make Title II-backed net neutrality different from “utility-style regulation.” The differences are all in favor of the ISP’s, rather than the consumers. There’s going to be no kind of rate regulation under this change. ISPs won’t pay tariffs or be subject to monitoring that could slow business, if not internet speeds. ISP’s can continue to bundle and lease their competitor’s access to their networks they control. The ISPs are not obligated to contribute to the Universal Services Fund, or collect the associated taxes and fees a utility would.

If you are for net neutrality(you should be), you need to recognize that last weeks victory was real and it was a valid win for the cause. If you want to argue or advocate for that cause you need to abandon the misinfo that the internet is now a utility. Saying the FCC’s decision gave service providers utility status benefits the very companies who would love to destroy net neutrality, effectively making the internet shitty for everyone you know~!

/end rant

Jonathan Howard
Jonathan is a freelance writer living in Brooklyn, NY
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