If the Federal Communications Commission assessed the Open Internet or net neutrality within the framework of the knowledge and information market, I think it would be easier for them to recognize that broadband operators, content delivery networks, and edge providers are all information service providers making reclassification of broadband operators as common carrier, telecommunications companies inappropriate.
Law established in two cases, National Cable & Telecommunications Association v. Brand X (2005) and Verizon v. Federal Communications Commission (2014) provide the FCC with the cover they need to make that leap.
In Brand X, the U.S. Supreme Court described characteristics that make broadband operators information service providers. A broadband provider offers its subscribers information services in the form of e-mail accounts and personal web pages. I would even add any news content that the broadband provider aggregates on its website. In addition, they may even provide links to other sources of online information that subscribers can access.
In Verizon v. FCC, the U.S. Court of Appeals for the District of Columbia describes YouTube as an information services provider. In discussing edge providers, the court provided this example:
“When an edge provider such as YouTube transmits some sort of content — say, a video of a cat — to an end user, that content is broken down into packets of information, which, in turn, transmits the information to the end user, who then views and hopefully enjoys the cat.”
Can an end user be an information services provider? Why not? Individuals are writing applications for use in processing information everyday. In Verizon, the court observed that:
“End users may often act as edge providers by creating and sharing content that is consumed by other end users, for instance by posting photos on Facebook.”
My question is, why should broadband operators be treated differently from other information service providers? The standard answer from net neutrality or Open Internet proponents is that as the broadband pipe provider, a broadband operator could discriminate against certain traffic flowing to end users or block end user access to other information service providers. End users should dismiss this fear of the unknown for three reasons.
First, end users have choices, whether wired or wireless, for access to information service providers. In Atlanta, an end user can get wired broadband access through Comcast or AT&T. They can also get wireless access via Verizon, AT&T, C-Beyond, T-Mobile, or Sprint. I currently have access with two providers, one wired and one wireless.
Second, it’s bad business. Comcast makes its money as an information services provider. The value of its access platform increases where end users have confidence that they can access information via Comcast’s platform. If end users don’t have this confidence, they will take their business to another provider.
Third, a broadband operator’s role as an access provider or gatekeeper doesn’t negate its primary role as an information services provider. The court in Brand X made it clear that broadband operators do not provide a transparent ability to transmit information as a telecommunications carrier does. From the end user’s perspective they receive an integrated service that gets them access to information online.
The FCC needs to understand that the telecommunications market of voice providers and voice subscribers is shrinking. This is a new information market made up of information service providers and consumers of content with consumers enjoying the increasing ability via innovative technology to sit on both sides of the market.
The crafters of Title II never envisioned this convergence instead viewing the telecommunications market as a demilitarized zone sitting between voice providers and telephone subscribers. That wall has crumbled and rebuilding it using Title II makes no sense.