ColorLines commenter Andrew adds this to Jamilah King’s explainer on the net neutrality debate:
The DC Circuit ruled that the FCC did not have the authority to regulate until it redefined internet service providers as telecom providers rather than content providers. So-called “reclassification” is basically nothing more than flipping a switch at the FCC, which they should have done years ago anyway, because classifying internet providers as communications providers like phone companies just makes so much more sense. Now they just need to stop being afraid of a political backlash that’s going to come no matter what they do (just like, oh, every Democrat out there).
Andrew points to a New York Times op-ed from University of Michigan Law School prof Susan Crawford, who reinforces Jamilah’s point—namely, that the only reason we’re having this debate in the first place is that the Bush administration deregulated high-speed Internet access. As Crawford wrote, back in April:
Until August 2005, the commission required that companies providing high-speed access to the Internet over telephone lines not discriminate among Web sites. This allowed innumerable online businesses — eBay, Google, Amazon, your local knitter — to start up without asking permission from phone and cable companies. There was nothing unusual about this legal requirement; for more than 100 years, federal regulators had treated telegraph and telephone service providers as “common carriers,” obligated to serve everyone equally.
But under the Bush administration the F.C.C. deregulated high-speed Internet providers, arguing that cable Internet access was different from the kind of high-speed Internet access provided by phone companies. Cable Internet access providers, the commission said, really offered an integrated bundle of services — not just Internet connection but also e-mail, Web hosting, news groups and other services. So the F.C.C. declared that high-speed Internet access would no longer be considered a “telecommunications service” but rather an “information service.” This removed all high-speed Internet access services — phone as well as cable — from regulation under the common-carrier section of the Communications Act.
This was a radical move, because it reversed the long-held assumption that a nondiscriminatory communications network was essential to economic growth, civic welfare and innovation.