In its continuing effort to assert regulatory authority over the Internet, the Federal Communications Commission earlier this month announced its intention to deem internet service providers, like Comcast, as “common carriers.” The principle of common carriage goes back to medieval England, where a town’s sole dock or ferry or inn was required to serve all comers, and to do so at a reasonable price. The law eventually evolved to include railroads, telegraph, telephones, and so on, but, at least in the United States, not the internet. Northwestern University Professor James Speta explains why, back when President Bush’s FCC had the opportunity to classify the internet as a common carrier, it chose not to.

JAMES SPETA: There was a technical reason and then there was a broader policy reason. The technical reason is that, unlike telephone service, Internet access service comes with a variety of additional services beyond just the transportation of the communications services. Internet access providers are also providing services like caching popular websites so that those websites take less time to load, or what’s called DNS service, which is the service that translates the domain name that we type in, Espn.com, into the technical address that actually pulls up the service from a computer on the internet.

BOB GARFIELD: So they're not just dumb pipes. There’s value added, there’s extra services, which the FCC believed distinguished them from being purely a carrier.

JAMES SPETA: The position that the FCC took in the early 2000s was that these additional services made internet access different from telephone service. And so, when the FCC rethinks this issue of how to classify internet service, they will say the fundamentally important part of internet access service is the communications capability and, therefore, it looks mostly like a common carrier service. At least, that’s what I anticipate the FCC will try to do.

BOB GARFIELD: But you said there was another reason, as well. What is that?

JAMES SPETA: The second, broader reason that the FCC didn't want to impose common carrier regulation on the internet was it hoped and believed that the internet was going to be a more competitive communications medium. And in its early stages, and in this developing competition, it didn't want to apply the heavy regulatory system of common carriage.

BOB GARFIELD: So has the court indicated whether it would look kindly on the redefinition of ISPs as common carriers?

JAMES SPETA: There was an appeal of the FCC’s initial decision to classify internet access service as not being a common carrier service and that case went all the way to the U.S. Supreme Court. It’s an opinion called the Brand X opinion. In that opinion, the Supreme Court said the text of the Communications Act is ambiguous. And so, we think the FCC could choose either to classify internet access service as a common carrier service or not. Its decision to classify it as not a common carrier service was upheld as reasonable. I think it fair to anticipate, based on the Supreme Court’s decision, that if the FCC were to take a serious look at this question and to conclude that internet access service is actually common carrier service, that that would also be affirmed as reasonable. I should add, however, that that matter will no doubt be challenged in court, no matter which way the FCC decides in the next year.

BOB GARFIELD: So if you had to make your best guess, two years from today, will ISPs be regulated by the FCC? Will the regulation actually be enforced? Or is this going to be tied up in the courts forever and ever and ever?

JAMES SPETA: My prediction is that the FCC will have some regulatory authority over internet access. What I would most like to see is for Congress to pass a new statute in which Congress makes some of the fundamental policy choices about what supervision of the internet ought to look like. In large part, this difficulty, where the FCC doesn't have authority to regulate, unless it’s willing to call the service a common carrier service, with all that implies, is created because Congress hasn't readdressed communications law to really take into account the internet age. So my prediction for two years is that either the FCC will exercise its common carrier authority or, failing to do that that Congress will act to give the FCC some additional authority to supervise Internet access.

BOB GARFIELD: Jim, thank you.

JAMES SPETA: Thank you.

BOB GARFIELD: James Speta is a professor of law at Northwestern University.