How do you use your Internet connection? Is it simply a way for you to get access to the news and entertainment handpicked by your ISP and offered up on portals like comcast.net, verizon.net, or rr.com? Is all you see and read at the mercy of some unseen editor, like with cable TV or your local newspaper? Or is it more like the telephone--a general-purpose connection granting access to everything else on the Internet, like other newspapers, Skype, the DMV, the Old Spice guy, or HuffPo?
Last week was the deadline for comments on this very question as the Federal Communications Commission reconsiders its authority over broadband Internet providers. Since 2002, the FCC has placed broadband ISPs in the (very) lightly regulated category of "information services" instead of "telecommunications services" subject to the rules of common carriage under "Title II" of the Communications Act. Back then, the FCC found that unregulated data storage and processing services like e-mail, web-hosting, and content aggregating portals were so bound up with basic access and transmission that it made more sense to treat them all as a single service.
If this sounds like a bit of an anachronism to you, you're not alone. The idea that subscribers would look to their ISP as the direct source for online content and applications sounds more like the AOL, CompuServe, and Prodigy walled-gardens of the 1990s than the fat pipes many of us are used to now. Today, Internet access services are marketed, purchased, and rated on features like speed, price, reliability, and oh yeah, speed. ISPs still offer extra "over-the-top" applications like e-mail and storage, and some people use them. But these add-on functions are easily available from an almost unlimited host of unaffiliated providers. For ISP subscribers the connection is the thing.
It is critical for the FCC to recognize this and to adjust the way it classifies Internet access. A recent court case, relying on the agency's classification of broadband as an "information service," threw the FCC's jurisdiction into limbo by rejecting its authority to enforce a no-blocking principle against Comcast. At the same time, the National Broadband Plan laid out ambitious goals for universal service and disability access. To prevent future bad action by ISPs, and to achieve the National Broadband Plan's goals, the FCC needs some authority over the most important 21st century communications infrastructure. The proper source of that authority is its "Title II" charge to promote the rapid, efficient, nationwide availability of telecommunications services.
This is not about "regulating the Internet." There must be clear limits on the authority the FCC asserts. Nothing the FCC does should give even the hint of rules governing the applications and services used over broadband connections. But the connections themselves are the sine qua non of all the benefits the Internet has come to offer, and to preserve and promote those benefits, the FCC should have the baseline authority to ensure those connections remain open and unrestricted.