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Dozens of lawyers and technologists have filed through the Federal Communications Commission over the past month as the agency has held a series of public roundtables about issues it’s considering while crafting new net neutrality rules.
Tuesday marks the last — and in some ways most important – roundtable, as the agency looks at what legal authority it should use to justify its rules.
Net neutrality activists want the agency to re-regulate Internet lines as a utility under Title II of the law, which was written for old phone networks. Broadband providers want the agency to use a different part of the law – Section 706 – which lets the FCC do things to ensure broadband is available to more Americans.
Net neutrality champion Tim Wu — the Columbia Law School professor who coined the phrase in a 2003 paper — spoke by phone with Re/code shortly before hopping on a train for D.C., where he’ll participate in the FCC’s Tuesday roundtable. He is a former adviser to the Federal Trade Commission and, more recently, a candidate for Lt. Governor in New York. He has also offered informal advice to the FCC for more than a decade about how to handle Internet regulatory issues.
Re/code: What’s the best path forward now on net neutrality?
Tim Wu: I think that it’s been clear for a long time that the most straightforward and safest legal path is using Title II authority. I think that the time has come where Americans think of broadband as an essential service or necessity.
Should net neutrality only apply to the last mile of Internet service or, like Level 3 and Netflix suggest, middle-mile services as well?
The middle mile is becoming a concern. The basic concern, which prompted net neutrality rules in the first place, was the idea that carriers would create slow lanes and fast lanes. And therefore distort competition on the Internet and protect incumbents from innovative challengers. And that can happen a lot of different places, including the middle mile or the end mile. So the Commission needs the authority to deal with throttling or gatekeeping strategies no matter where they happen.
Some people are now suggesting the FCC using a hybrid approach — a little Title II, a little Section 706 — when crafting new rules. Do you think that’s a good idea?
It depends on the approach. I tend to think Title II is the simplest way of doing this. There could be other ways to combine regulatory authority.
The Commission has a way to get too clever sometimes and trying to find a magic bullet approach … and when it gets to the courts it gets struck down. It’s important to be wary of getting too clever in order to please every constituency in Washington. When it comes to the courts, Title I, or Section 706, has always been a weaker authority. That’s one danger.
Can you preview what you’ll tell the FCC on Tuesday?
The main goal is to dispel the bogeyman image that has been created around Title II. There’s been a strong effort to repel it by stigmatizing it. Enormous parts of the telecom infrastructure right now are regulated under Title II.
If they went forward with Title II, what parts of the law should they forbear (a promise not to enforce) from?
Most of it. That’s where the negotiations should be occurring. No blocking, no fast lane-slow lane gimmicks. No messing around. … There are various ways to get to that. What’s clear is that the forbearance authority is strong and it’s been used quite a bit. It should be easy.
Should they forbear from the section that allows for price controls or price regulation?
One of the things that 706 or Title II both contemplate is price controls. Right now, it’s not the time to impose price regulation.
But if [FCC Chairman Tom] Wheeler is correct and there’s lack of competition in the broadband market … any economist will tell you when there’s a market with no competition … the answer is price regulation. I wouldn’t say do it now. But I wouldn’t say that forever.
What do you think Wheeler is going to do?
I remain somewhat optimistic that he will see the need to preserve and invoke the full power of the Commission, which is Title II. … I imagine if he wants the full scope of power, he will have to use Title II in some way.
Many people still seem to get hopelessly confused when trying to understand net neutrality. Any regrets coining the phase? Is all this confusion basically your fault?
(laughing) I don’t regret it at all. People say it’s confusing and yet somehow millions of Americans found themselves motivated to write to the Commission.
Most of the major issues of our time are confusing. It’s not like health care reform is paint-the-dots. It’s complicated. The issues surrounding Internet discrimination and Internet carriage require putting a little time in. Ultimately it’s not that hard.
People understand the idea of discrimination. … Trying to understand Title II and 706 is a different story.
This article originally appeared on Recode.net.
