It's an information service, it's a telecommunications service. It's two services in one.
A group of net neutrality rule supporters including Consumers Union, Media Access Project and Public Knowledge have advised the FCC to assert its authority for those proposed new rules by relying on both Title I authority to regulate information services and Title II authority to regulate telecommunications services.
In comments to the FCC in its rulemaking codifying and expanding on its Internet Policy Statement, one of thousands flooding the commission, the groups, collectively calling themselves the Public Interest Commenters (PIC), said that they believed the rules were sustainable under the Title I authority the FCC applied to cable modem and DSL service in 2005, but suggested it might be better to tie the rules to both.
Under Title I, ISP's are not subject to the mandatory access provisions of Title II regs that apply to traditional phone services, but the FCC has posited the authority to police Internet openness based ancillary authority tied to its general Communications Act powers, an argument it made to a D.C. federal court in the BitTorrent case last week (Title I includes powers "reasonably ancillary to the effective performance of [its] various responsibilities" to regulate wired and wireless communications). But the judges suggested the commission needed to find a more specific statutory hook for its authority over the Internet.
Instead of relying on that general ancillary authority, the groups suggest, the FCC should tie that authority to Title II through the transmission element of Internet delivery--the pipes--rather than the content that flows through it.
"[W]hile PIC concur with the conclusion in the NPRM that the Commission has more than adequate authority to adopt the proposed rules," they wrote, "PIC propose alternative theories of Commission authority more consistent with the purpose of those rules, linking the exercise of authority directly to the underlying transmission component of broadband access service.
They argue that tying it to the transmission element also addressed the concerns, including of cable operators, that the net neutrality rules "confer power to regulate content."