An Opening for the FCC on Net Neutrality?

Last week a a federal appeals court upended the Federal Communications Commission's plans to set net neutrality regulations. The ruling will allow Internet service providers to block and slow access to certain Web sites. It also means they will be able to charge Web sites to deliver content faster to consumers.

Now, a University of Michigan law school professor says the government can sidestep the court and regain its authority simply by rebranding access services as "telecommunications services," instead of "information services," which is their current classification. All that's needed, says Susan Crawford, a former economic adviser to President Obama, is a convincing reason. In an op-ed piece published in the Sunday edition of the New York Times, Crawford argues that an FCC relabeling of Internet access services wouldn't be a first. Nor would it be the first time the FCC has raised the issue of equal access. According to Crawford:

"Until August 2005, the commission required that companies providing high-speed access to the Internet over telephone lines not discriminate among Web sites. This allowed innumerable online businesses - eBay, Google, Amazon, your local knitter - to start up without asking permission from phone and cable companies. There was nothing unusual about this legal requirement; for more than 100 years, federal regulators had treated telegraph and telephone service providers as "common carriers," obligated to serve everyone equally."

"But under the Bush administration the F.C.C. deregulated high-speed Internet providers, arguing that cable Internet access was different from the kind of high-speed Internet access provided by phone companies. Cable Internet access providers, the commission said, really offered an integrated bundle of services - not just Internet connection but also e-mail, Web hosting, news groups and other services. So the F.C.C. declared that high-speed Internet access would no longer be considered a "telecommunications service" but rather an "information service." This removed all high-speed Internet access services - phone as well as cable - from regulation under the common-carrier section of the Communications Act."

Crawford's rationale for relabeling high-speed Internet access as a "telecommunications service": Consumers don't make their Internet access service choices based on whether an e-mail address is included in the bundle. Rather, the decision comes down to the speed and price of the offering.

Her proposal is not likely to convince many cable and telecom execs. They don't like the FCC's broadband plan. Even bitter business rivals, like AT&T and Verizon, are united in opposition. In a blog post, AT&T's Jim Cicconi, said that "the proper answer is not for the FCC to get adventurous in interpreting its authority, as some are urging. Instead, any question of the FCC's jurisdiction over the Internet should properly be referred to the Congress for resolution." Tom Tauke of Verizon to consider an updated regulatory approach. In a speech to tech executives last week, he said the FCC should be concerned primarily with enforcement instead of acting as a rule-making body.