What does Title II actually mean for the future of the internet?

Wade Sims for redOrbit.com – Your Universe Online

Yesterday the Federal Communications Commission voted to enforce stronger Net Neutrality rules that prevent internet service providers from blocking access, throttling traffic, or prioritizing access to Internet services in exchange for payments.

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In order to do this, the FCC had to reclassify land-based and mobile broadband services as telecommunications services, which permits the FCC to regulate these services under Title II of the Communications Act. The move has been lauded by many and vehemently criticized by others. Proponents see the move as necessary to save the democratically free and Open Internet. Internet service providers and some Republicans see the move as a government overreach that will lead to the sureties in life – death (of the internet) and taxes.

So what does Title II really mean for the future of the internet? Did the FCC just safeguard the future of the free Internet from corporate monopoly, or did it overreach its bounds and open the door to government censorship?

Once upon a time

When it comes to Net Neutrality, the news has been full of buzzwords (like “Net Neutrality”) that are perfectly cromulent – everyone thinks they know what it means, but in reality they probably don’t. In order to understand Net Neutrality, it’s necessary to know what these buzzwords really mean.

“Net Neutrality” is a term that was coined by Columbia University media law professor Tim Wu back in 2003. At its most basic, the principle means that internet service providers (ISPs) and governments should treat all data going across the Internet equally. Wu, like many others, feared that if ISPs were allowed to discriminate against certain types of data, they could use their natural monopoly over what is known as the “last mile” infrastructure to block content or applications. For example, Comcast might decide to charge extra to let viewers browse Facebook or Netflix. Netflix, after all, competes with their cable services – why not charge extra to allow consumers to connect to a competitor?

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This actually happened back in 2007. Comcast was caught throttling traffic for peer-to-peer connections, slowing them down in some cases to nearly unusable speeds. The FCC ruled in a 3-2 decision that this type of traffic discrimination was illegal, but the U.S. Court of Appeals overruled the FCC, stating it had no authority under Title One to impose Net Neutrality provisions on ISPs.

My, what big eyes you have

How do ISPs like Comcast figure out how to throttle certain types of traffic? They use something called deep packet inspection.

Information travels across the internet in packets like 18-wheelers on an interstate. Deep packet inspection is equivalent to a DHS border guard that searches the vehicle for any “disagreeable” material and detaining the vehicle indefinitely if that material is found. Normally disagreeable material is straightforward: spam, viruses, protocol noncompliance, and other things consumers don’t want reaching their computers. When the category includes traffic types or traffic content that the ISP doesn’t like and not just things harmful to security or network management, it’s a violation of Net Neutrality principles.

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Deep packet inspection is required by law. Law enforcement has to use deep packet inspection. To intercept potentially illegal communications or traffic like financial fraud, terrorism, child pornography, and other Internet terrors. On phone networks, law enforcement requires “traffic access points,” or “taps,” which allow law enforcement agents to covertly listen in on communications. Digital networks function differently, however. It’s much harder to intercept traffic going across a digital network because it doesn’t transmit as a contiguous signal. The United States therefore requires that ISPs cooperate with law enforcement agencies by using deep packet inspection to monitor for illegal activity.

Net Neutrality is considered to be part of the concept of the Open Internet, which encourages not only neutral treatment of data but also the use of open standards, transparency about practices, avoidance of censorship, and low barriers of entry for Internet-based services. The Open Internet is primarily decentralized and democratic in nature. No one can own it – not even Comcast, the FCC, or the United States.

Many proponents of Net Neutrality campaigned the FCC to designate the cable companies as common carriers, requiring that they allow ISPs free access to their lines. “Common carrier” is a legal term that refers to an entity that holds itself out to the public as a public service; these services, like planes, trains, and taxi cabs, are prohibited from discriminating against the public and have to provide services equally to everyone. By classifying the cable companies as common carriers, cable companies would have to allow ISPs access to their lines freely and without discrimination.

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This is how the phone industry worked after the breakup of the Bell System, including dial-up Internet.

Straw, sticks, and bricks

One more important thing to understand is how the Internet is actually built. Some people picture the Internet as a giant cloud of information. Others sometimes envision “a series of tubes,” a term infamously popularized by then-U.S. Senator Ted Stevens (R-Alaska), a vocal opponent of Net Neutrality. His analogy is not too far off.

Homes and businesses connect to the Internet via a network of cables to their local ISP. For dial-up and DSL, the cables were copper phone lines. Today we use cable TV lines or, for some lucky denizens, fiber optic, which transmits using light instead of electricity. Usually these connections are copper, though, and the connection between consumer and ISP is colloquially referred to as the last mile.

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ISPs take consumer Internet traffic and forward the traffic along a large bundle of fiber-optic cables known as T3 lines to a network access point (NAP) – a public network exchange facility designed to connect ISPs to one another. Network access points talk to one another via what is known as the Internet backbone, a trunk line that carries all of the Internet data between NAPs. In that sense, the Internet is a network of networks, functioning like a tree or a fractal that branches from the trunk into smaller and smaller connections until it finally reaches your house.

There’s a catch, though. It would be inefficient for large applications like Facebook or YouTube to connect from their tiny spoke to your tiny spoke. Because so many consumers are accessing those services, the network would bottleneck. Thus, big companies like Microsoft and Google have set up dedicated and direct connections to ISPs known as peering connections. Within the ISPs that exist locally near your house, Google et al have set up their own servers for their Internet applications inside the ISP. Google can, for example, push YouTube videos to its own ISP-located servers, known as content delivery networks (CDNs) so that when you ask your ISP for the best cat video compilations of 2015, it’s right there on the ISP’s server. The ISP doesn’t have to fetch the video over the Internet backbone.

ISPs normally don’t charge for content delivery networks. Google wants you to have cat videos, and ISPs want you to be able to connect to those cat videos quickly so you don’t leave for the competition. However, most broadband ISPs don’t actually have competition. Because ISPs own their own last mile and, unlike the telephone providers, are not required to open up access to their lines, consumers sometimes have only one or two broadband ISPs to choose from. ISPs figured this out and then realized they had much better bargaining power against content providers like Facebook and Netflix. The larger ones have started letting connections to the content delivery provider’s CDN servers overload in an effort to sell ISP-branded CDNs to the content delivery providers.

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Critics believe that the ISPs are attempting to double-dip by charging the customers for access to web content and then charging the content providers for delivery of the paid-for content to the customers. ISPs claim that this is the cost of doing business when content providers get popular and tax their networks.

I’ll huff, and I’ll puff…

The FCC has tried at several junctures to establish Net Neutrality rules. The first attempt was against Comcast in 2008 for throttling BitTorrent, for which the U.S. Court of Appeals said that the FCC could not impose traffic management regulations for Title I-based entities like ISPs. In response, the FCC voted and passed in December 2010 the FCC Open Internet Order which banned cable television and telephone service providers from preventing access to competing websites and articulated other Open Internet-style principles.

Verizon, having zero interest in being told how it has to run its own network, sued the FCC, arguing that the FCC would have to classify it as a common carrier under Title II for the Commission to have any regulatory authority over it. On January 14, 2014, the D.C. Circuit Court once again held that the FCC had no authority to enforce Network Neutrality under Title I because ISPs are not common carriers. In the ruling, the Court stated that the FCC could impose regulations on Title I services that fell short of identifying ISPs as common carriers.

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Debate broke out as to whether the FCC could ensure Net Neutrality under Title I at all. Meanwhile, ISPs started making noises that they would be moving away from Net Neutrality principles by charging for paid prioritization. ISPs classified this paid prioritization structure as Internet fast lanes, which would allow content providers to buy a faster tier of Internet than normal. Critics lashed back that one cannot have fast lanes without also having slow lanes, and that “speeding up” one lane was just a euphemism for “slowing down” all the other lanes on a relative scale.

The FCC had two options: allow for fast lanes and leave ISPs as Title I, or attempt to reclassify ISPs as Title II telecommunications services and enable the imposition of strict net neutrality regulations. The Commission held a public comment period, and the public at large actually broke the FCC’s website by flooding it with over four million comments, the most the FCC had ever received – over double the number of complaints following Janet Jackson’s nipple exposure at the Super Bowl XXXVIII halftime show. A huge number of Neutrality advocates filed comments in support of Net Neutrality, including President Barack Obama who recommended that the FCC reclassify ISPs as telecommunications services.

On February 26, the FCC decided to go all in, reclassifying both land-based and mobile ISPs as telecommunications services – common carriers – under Title II. The classification comes with some technicalities. Only the ISP-to-consumer connection is classified as a common carrier service, leaving the ISP/content provider relationship unchanged on concerns that it would allow ISPs to charge content providers for access to ISP networks and not just ISP CDNs.

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The core of the change accomplishes (1) bans on throttling and blocking traffic, (2) bans on paid prioritization models like fast lanes, and (3) transparent disclosure of network management practices. With some exceptions for “reasonable network management” and non-public Internet services like Voice over Internet Protocol services (e.g. Comcast Voice), ISPs are prohibited from censoring or slowing down access to legal content or applications.

The Title II reclassification comes with new requirements for ISPs. ISPs have to investigate consumer complaints, provide protections for people with disabilities such as the blind or deaf, and comply with certain privacy rules. Additionally, the FCC preempted network-provider-friendly state laws in Tennessee and North Carolina that prevented municipal broadband providers from expanding outside their territories.

Another contentious change are rules that guarantee ISPs access to utility infrastructure like utility poles. Proponents believe this will make it easier for ISPs to enter the market, while opponents like Republican FCC commissioner Ajit Pai believe this will result in higher fees for providers.

And they all lived happily ever after…

Just kidding – queue the lawyers. Obviously not everyone is happy with the new Net Neutrality rules. Republicans have already proposed legislation to reverse the FCC’s Title II classification in Congress and take away their apparent authority over ISPs. ISPs have voiced their displeasure throughout the whole process. Verizon is so ticked off that it actually issued, in what could be described as an exceptionally clever (or childish) response, a press announcement in Morse code castigating the FCC for imposing regulations that will set back the Internet 81 years (an impressive feat, considering that the Internet is only 46 years old).

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Why all the hate? Conservatives see the FCC move as a typical regulatory overreach into private matters by an overzealous federal government. Critics like Pai assert that the Internet is not broken, and so the government has no place in trying to fix what is already working as intended. ISPs for their part don’t want another regulatory body meddling in their affairs; for one, the FCC is preempting potential revenue streams that ISPs can leverage based on their geographical monopolies or oligopolies over the last mile. Additionally, all of the investigations, disability protections, and reporting requirements come with real-world costs. The FCC is essentially slicing a chunk of revenue out of the ISPs. Worse yet, Title II implicitly allows the FCC to dictate what ISPs can charge, a provision created to protect consumers from monopolistic pricing models.

The ISPs don’t plan on taking it lying down. AT&T has already made noises that it will sue the FCC on grounds that ISPs cannot be telecommunications service providers by definition and that the FCC has no authority to change ISPs to Title II. Other ISPs will undoubtedly follow suit.

It’s a risky gamble for AT&T et al. The last time Verizon went to court, it won a Pyrrhic victory. Although the Open Internet Order was defeated, the FCC called Verizon’s bluff and moved for Title II classification as Verizon suggested it would have to. Another blow against Net Neutrality could have unintended consequences for utility-invested ISPs (Comcast, Verizon, AT&T), such as forcing reconciliation by unbundling the last mile and requiring utilities to allow any ISP on the network.

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So will Title II upend the Internet as we know it? Probably not. It’s a house of bricks that’s already withstood the blows of Title II.

Contrary to popular belief, this actually isn’t the first time the Internet has been subject to Title II. In 1998 and 1999, during the heyday of DSL, the FCC forced Bell Companies to provide “open access” service and allow third-party ISPs to lease utility lines for DSL Internet. The result, for those old enough to remember, was a plethora of DSL ISPs competing and offering competitive prices. In 2005, the FCC reclassified DSL from Title II to Title I, putting it on the same footing as other “information services.”

This round is a little different, since there is no unbundling requirement, but history does shed some light on the legal arguments that are bound to arise. First, the argument that the FCC has no authority to classify ISPs as “communications services” is undercut by the fact that the FCC has already classified DSL ISPs both to and from Title II. Second, ISPs actually argued in favor of Title II when threatened with classification as an information service, wanting the benefits of Title II to preempt state regulations. Even Verizon has claimed that Title II is beneficial to its fiber optic network development for dealing with utilities.

Whether Title II will actually help the Internet and promote Net Neutrality is unknown at this point, but Net Neutrality proponents are optimistic. The debate as to whether the FCC has overreached its bounds and has introduced the possibility for installing oppressive government regulations for the Internet is, for now, academic. The FCC has historically made no move to censor the Internet and has generally promoted the idea of Open Internet policies.

Likewise, whether Title II will help or hinder development of Internet infrastructure and investment is also up for (furious) debate and will likely have to play out in the courts and in real life before anyone has a good answers. Since ISPs can’t seem to agree with themselves on whether Title II is good or bad, it’s safe to assume that the effects are, for now, unknown.

What does this mean for you, the consumer? In a nutshell: (1) ISPs can’t charge, block, or throttle you for accessing content, (2) Comcast can’t charge, block, or throttle content providers for providing content to you, and (3) some ISP lawyers are about to be very, very busy.

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