Is the Internet Headed to Common Carrier Regulation?

By: Andrew Regitsky

There were two unrelated events this week that may significantly affect the future of Internet regulation. The first involves a letter sent from 50 consumer advocacy groups seeking President Biden to appoint a fifth FCC commissioner.  According to the groups, which include the American Civil Liberties Union and the Consumer Federation of America, not having an additional Democrat on the Commision “is incompatible with the goal of delivering open, affordable and reliable high-speed broadband to every home.  This is all the more urgent given the fact poor families and people of color are disproportionately disconnected from high-speed internet access, compounding grave inequalities that were made worse during the pandemic.”

The groups want a full five Commissioner FCC to:

Remedy previous neglect of the Lifeline program that supports low-income access to communications; 

Create rules to make our nation’s networks more reliable and resilient;

Help guide the deployment of new broadband infrastructure built with federal dollars to make it as effective as possible;

Approve emergency waivers for E-rate funded infrastructure to be opened up for remote education, and;

Reclassify broadband internet access as a Title II service to ensure fair and equitable access for everyone and to reinstate strong net neutrality protections.

The advocacy groups have it right that as soon as a fifth commissioner is confirmed, the FCC will seek to reinstate the net neutrality rules of no blocking, throttling or paid prioritization of Internet traffic along with gaining control over ISP pricing by classifying them as common carriers under Title II of the Communications Act.

That’s why the second action this week is so crazy if you believe as I do that the best way to ensure Internet investment and innovation is through lightly regulating ISPs as a Title I information service providers. Importantly, this does not mean that bad actors aren’t punished, it means instead that punishment is targeted toward the offender by the Federal Trade Commission through the application of the anti-trust laws, in addition to penalties doled out by the FCC.   

It makes no sense that the one party – the Republicans – who claim to support light Internet regulation, seem to be throwing their arguments away.  On June 8, 2021, Republican Ohio Attorney General Dave Yost filed a lawsuit asking the Delaware County Court to declare Google a Title II public utility, to rein in the ways its search engine provides search results to Ohioans.  According to Yost, “Google uses its dominance of internet search to steer Ohioans to Google’s own products–that’s discriminatory and anti-competitive.  When you own the railroad or the electric company or the cellphone tower, you have to treat everyone the same and give everybody access.”

The lawsuit alleges two causes of action against Google:

A legal declaration that Google is a common carrier (or public utility) subject to proper government regulation;

A finding that Google has a duty to offer sources or competitors rights equal to its own, meaning it should not prioritize the placement of its own products, services and websites on search results pages.  Those equal rights should extend to advertisements, enhancements, knowledge boxes, integrated specialized searches, direct answers and other features.

Incredibly, after filing this first in the nation lawsuit, Ohio seeks no damages or punishment for Google.

This suit does not seek redress for Google’s dominance of internet search.  This suit does not argue that Google’s dominance of internet search is good or bad when viewed in isolation.  Those issues are left to be resolved elsewhere.  This case accepts Google’s dominance of internet search as a fact (be it good or bad).  Accepting this fact, the first claim is narrowly focused on establishing that Google’s provision of internet search is properly classified as a common carrier and/or public utility under Ohio common law.  (State of Ohio Complaint for Declaratory Judgment and Injunctive Relief, filed on June 8, 2021, at p. 3).

If Republicans are so willing to request Title II treatment for Google, (with no punishment for behavior the lawsuit claims is unlawful), how can they argue against similar treatment for ISPs when the net neutrality proceeding begins again at the FCC?  They can’t!  They have undercut their arguments against Title II with this meaningless Google lawsuit.  At best they are hypocrites and at worst fools!  This ridiculous lawsuit will only further the stampede toward Title II regulation for the entire Internet, coming soon to the FCC.