Definition of Telecom Service Could Become Net Neutrality Issue, Yoo Says
A legal issue that could arise if the FCC’s coming net neutrality order reclassifies broadband as a telecom service is that a telecom service is defined as "the transmission, between or among points specified by the user, of information of the user’s choosing,” said University of Pennsylvania Law professor Christopher Yoo. Technically, while users may enter the name of the website they want to visit, it’s the Domain Name Server service that chooses the point on the Internet where the user goes, Yoo said at a net neutrality panel Monday at the Association of American Law Schools annual meeting. Other panelists disagreed.
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It’s an interesting argument, said Brett Frischmann, a professor at Yeshiva University’s law school, but Frischmann wasn’t convinced there’s a difference. The DMS is acting as the user’s “proxy,” he said. Marvin Ammori, fellow at the New America Foundation, said Yoo's argument wouldn’t fly.
Yoo predicted the FCC will adopt a Title II Communications Act approach. Chairman Tom Wheeler plans to circulate a draft order with the aim of a vote at the Feb. 26 meeting (see 1501020035). Several industry officials also said they expect reclassification (see 1412310041). Attempts by Republicans in Congress to block reclassification will fail, because President Barack Obama has veto power, Yoo said, leading to the issue ultimately being decided in the courts. During the minimum of two years it would take to the courts to issue a decision, the industry would be acting “on its best behavior,” Yoo said.
Some form of paid prioritization could make sense, Yoo argued, saying customers could be willing to pay for better access to the handful of websites they typically visit. Forgotten in the debate, he said, was that common carriage rules were not thought to be “working very well” in the 1970s and 80s.
Ammori said that with many businesses reliant on the Internet, broadband providers shouldn’t be in a position to determine “winners and losers.” Successful Internet startups began with little money, and without strong net neutrality rules future entrepreneurs would be beholden to ISPs, he said. A Title II approach had been considered “politically unfeasible,” he said. Obama’s backing of reclassification allows the debate to happen on “equal terms,” said Ammori.
A misconception in the debate, Frischmann said, is the distinction drawn between content providers and end-users, because end-users, in uploading videos to YouTube or sharing content, are also content providers. Allen Hammond, a Santa Clara University School of Law professor, said net neutrality rules also should be applied to mobile broadband. Minorities and lower-income people disproportionately rely on mobile devices to access the Internet, he said. Not applying the same rules to wireless, he argued, would give disproportionately less protections to those communities. CTIA didn't comment.
National Black Chamber of Commerce President Harry Alford referred to a June op-ed, in which he wrote that, given the disparity in access to the Internet, the “continued expansion of broadband is particularly critical for minority communities.” However, “public utilities such as highways and the electric grid have long been plagued by funding shortages. … Public utility regulation directly leads to such problems by dampening the competition necessary for more investment. Title II regulations were designed to rein in long-gone telephone monopolies — not the dynamic, competitive businesses we see today.”