This judge is the reason we're still fighting over net neutrality

All roads seem to lead to David S. Tatel

(Image credit: (AP Photo/Kenneth Lambert))

The Federal Communications Commission is preparing for a politically contentious vote over "open internet" rules, more commonly known as net neutrality. For those who've been living under an (internet-less) rock, the principle at stake here is that all traffic on the internet should be treated equally, and that consumers should be able to use the internet more or less however they please. But the devil, as they say, is in the details — specifically, the arcane details of communications law.

The big political fight is ostensibly over how the FCC should classify broadband internet service providers, but it's really about who controls the future of the internet. The FCC is seriously considering reclassifying ISPs as "telecommunications services" under Title II of the Communications Act of 1934. ISPs and their Republican backers in Congress want the FCC to keep the current classification, "information services," a distinction created by the 1996 Telecommunications Act.

The former classification would give the FCC far more power to regulate ISPs; the latter gives the ISPs much freer rein. The FCC, under Republican chairman Michael Powell (now a top cable industry lobbyist), designated cable broadband an "information service" in 2002, extending that classification to all broadband ISPs three years later, after the Supreme Court allowed the change.

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This article isn't a history of net neutrality or an explainer — there are some helpful ones out there already — but rather a quick look at why the FCC is considering reclassifying broadband internet now. And perhaps the biggest reason is a blind federal appellate court judge named David S. Tatel.

A Clinton appointee, Judge Tatel seems to pop up anytime the FCC fights for net neutrality in court.

After the FCC ordered Comcast in 2008 to stop covertly "throttling" customers' download speeds — its first big attempt to enforce net neutrality — Tatel and two concurring judges at the U.S. Court of Appeals in Washington ruled against the agency. The FCC had based its authority over Comcast "on the broad language of section 4(i)" of the Communications Act of 1934, Tatel wrote in his 2010 decision. "Indeed, in its still-binding 2002 Cable Modem Order, the Commission ruled that cable internet service is neither a 'telecommunications service' covered by Title II of the Communications Act nor a 'cable service' covered by Title VI."

Tatel was unanimously joined in his decision by the other two judges on the panel, David Sentelle (Reagan appointee) and Arthur Raymond Randolph (appointed by George H.W. Bush).

The FCC, then chaired by Democrat Julius Genachowski, responded in December 2010 with a new Open Internet Order, resting the agency's authority over ISPs on a section of the 1996 Telecommunications Act. Verizon sued, and once more, in January 2014, Tatel slapped the FCC down.

In his Verizon v. FCC decision Tatel was joined by Judge Judith W. Rogers (Clinton appointee) and partially joined by Judge Laurence Silberman (Reagan), who wrote a concurring dissent indicating he would have restricted the FCC's options even more. Because Tatel once again left a door open for the FCC commissioners.

The FCC "reasonably interpreted" the relevant section of 1996 Telecommunications Act, Tatel wrote. But he also said that the FCC couldn't just sidestep its "still-binding" classification of ISPs as information services, not telecommunication services. Moreover, Tatel argued, the FCC's goals of net neutrality was laudable and likely necessary for a healthy internet:

The Commission's finding that internet openness fosters the edge-provider [content provider] innovation that drives this "virtuous cycle" was likewise reasonable and grounded in substantial evidence.... Equally important, the Commission has adequately supported and explained its conclusion that, absent rules such as those set forth in the Open Internet Order, broadband providers represent a threat to internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment. [Verizon v. FCC]

The way to prevent that, Tatel hinted, would be reclassifying ISPs as a Title II utility.

Now, re-classifying broadband internet isn't the only way to further the goals of net neutrality, but it's the most obvious solution for the FCC. Most other solutions include other agencies or private entities.

It's worth noting that practically everyone, including Verizon, vows allegiance to a neutral internet. (Comcast has to adhere to FCC net neutrality rules until 2018, under the terms of its purchase of NBC Universal, no matter what the courts decide.) But the actions of large broadband ISPs haven't been encouraging so far.

Conservatives and fiscal libertarians who believe that all government regulation is bad will oppose this step-up in regulation on principle, and maybe a little more. But the choice they're making is to trust Comcast, Time Warner Cable, AT&T, and Verizon over the FCC.

For lots of people, deciding whether to entrust the internet as we know it to a federal agency or cable and phone giants might be a tough call. But it's worth noting that the reason the FCC may well increase its authority to regulate broadband ISPs is because five judges on the nation's top federal appeals court told them that if they want to enforce net neutrality, they had little other option.

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