The Legal Case for Net Neutrality Increasingly Lacks Resemblance to Policy

Nilay Patel, the Verge:

Regardless of the legal history, it really does seems obvious to most people that broadband internet access is a telecommunications service that should be neutral. In this case, Ajit Pai and the FCC made the argument that broadband is actually an “information service” because access is paired with… DNS and caching services. That’s DNS, as in the domain name lookup servers that translate domain names to IP addresses, and caching services that host copies of data closer to your location to speed up your access.

Not email, not some wacky AOL chat room. DNS and caching. And because that argument worked in the 2005 Brand X case, the court in 2019 was obligated to say the FCC could use the same argument again.


The court next addresses whether mobile broadband is a “commercial mobile service,” which is the wireless version of a telecommunications service, or a “private mobile service,” which is the analogue to an information service. I will spare you the details of the long, long discussion that follows, except to say the state of telecom law in 2019 is such that the court winds up making its decision based on the fact that smart washing machines cannot make phone calls.

There is overwhelming support across all sectors of the American public for ISPs to be treated as utility providers. Every renter knows that internet service is listed under a Utilities heading in the lease agreement. Even ISPs call themselves utilities when they benefit, but argue the opposite when they would be treated to similar regulatory oversight.

Broadband is a utility. Everyone knows it; ISPs know it, too. They just don’t want it to be treated as such because they would have to compete on speed and price instead of lacklustre incentives and anti-competitive policies. It’s time to regulate it as such.