[UPDATE 5:20 PM - FCC Chairman decides to use Title II after all, but apparently without "the beef" of Structural Separation that most in the Net Neutrality movement is asking for.]

The broadband reclassification movement have declared a call to arms for their brothers and sisters in the “Network Neutrality” movement after a story “leaked” to the Washington Post.  The sources said that FCC Chairman Julius Genachowski is leaning away from reclassifying broadband as a Title II telecommunication service which would have required reversing the stance of three previous FCC Chairman under both Republican and Democratic appointments and would have led to a brutal legal battle that would be very difficult to win.  This has the entire Net Neutrality movement up in arms and Genachowki has effectively been branded a traitor to the Obama presidency and Net Neutrality.

Criticism of the Chairman is unjustified because the entire idea of reclassification to regulate broadband Internet service and prevent another Comcast-BitTorrent situation is a myth, yet the reclassification advocates continue to attack anyone who dares to question their faith in reclassification.  When AT&T representative Hank Hultquist pointed out that “broadband Internet access” was never regulated as a Title II telecommunications service, the reclassification movement quickly dismissed Hulquist’s claims as the rantings of a paid shill without addressing the actual merits of Hulquist’s assertions.

The reclassification faithful pointed to the apparent rebuttal by Public Knowledge’s Harold Feld, but Feld actually confirmed Hultquist’s assertions that broadband Internet was always an information service under Title I even though broadband transport was classified as a Title II telecommunications service.  The key distinction here is broadband “transport” versus broadband “Internet”.  Comcast’s controversial BitTorrent management practices occurred on the Internet portion and not on the transport portion which means Title II jurisdiction never would have applied in the first place.  Feld even went on to say that they don’t actually object to content censorship so long as mandatory wholesale of broadband transport infrastructure at government regulated prices existed under Title II regulation.  The theory is that the added intramodal (competition over the same infrastructure) broadband competition would give consumers an alternative if they didn’t like the content/application blocking from their current broadband provider.

Net Neutrality doublespeak

In a letter to the FCC from Tim Wu, Susan Crawford, and Marvin Ammori, the three suggested that Net Neutrality doesn’t actually regulate the Internet.  Wu, Crawford, and Ammori bemoaned the fact that carriers are claiming that the FCC is trying to regulate the Internet:

“Reclassification of the transmission portion of the high-speed Internet access as a Title II service would not implicate “the Internet” – the content and applications that run ont these basic transport services.  The carriers’ assertions that the Commission would be regulating “the Internet” are deliberately misleading.”

Yet this doublespeak is baffling because what else do we call the FCC’s proposed actions over the Internet but “regulation” if they are trying to regulate Internet Service Providers at the application and content level and in the prioritized and enhanced Internet Protocol (IP) services market?  Whether or not we should favor or oppose Internet regulation is a worthy debate, but to insist that the FCC’s proposal doesn’t regulate the Internet is misleading.

Furthermore, the proposed regulations on the Internet are outside the scope of the old Title II classification.  The old Title II classification framework didn’t pertain to the Internet so how would it apply to the Comcast-BitTorrent case and how would it apply to the six FCC proposals do pertain to the Internet?  This bizarre reasoning makes absolutely no sense until we understand that most hardcore Net Neutrality advocates don’t care about Net Neutrality so long as they get “structural separation” back from the old Title II regulatory framework.  All that anti-censorship talk was just a convenient bumper sticker slogan with no actual substance.

The Open Internet Coalition straw man

But the blatant incoherency of the reclassification movement doesn’t stop here.  Markham Erikson of the Open Internet Coalition (OIC) accused me of using a “straw man” argument when I suggested that Title II reclassification only entails mandatory broadband transport wholesale (structural separation) and doesn’t pertain to content censorship.  Erikson insisted that Title II does pertain to content censorship and that reclassification would not require going back to the old Structural Separation framework.  I refuted Erikson here, but it baffles me why Erikson would call it “reclassification” when what he is proposing has almost no resemblance to the old Title II classification.  It is also strange that he would accuse me of using this “straw man” argument when it is the vast majority of his own allies in the reclassification and Net Neutrality movement that want structural separation.

Erikson goes on to insist that reclassification is all about protecting content and application providers from broadband provider blocking or interference.  But the old Title II framework never applied above the transport layer where blocking and censorship might take place yet Erikson insists that regulating the transport applies to the content.  Markham either doesn’t understand the fact that transport is ignorant of the content and applications or he is misleading the public.

Perhaps the most startling aspect of Erikson’s position is that it is in sharp opposition to all the other Net Neutrality reclassification proponents.  Harold Feld (representing Public Knowledge), Marvin Ammori (representing Free Press), Tim Wu, and Susan Crawford all want structural separation and don’t care about regulating above the transport and don’t care about censorship because they believe competition is an adequate substitute.  Markham Erikson of the OIC only cares about regulating and preventing content and application censorship but doesn’t care about structural separation.

It’s quite possible that the reclassification issue is so complicated and nuanced that no one in the main stream media will pick up on its incoherency.  The OIC and all the other Net Neutrality advocates can collude towards Internet regulation and Structural Separation and neither one of these groups need to defend the merits of either goal.  They can either deny that they support the goal in question or they can put forth an incoherent explanation and few in the media will challenge them.