Thread by @EFFFalcon

1) Assertions that the FCC is "returning to the status quo" drive me nuts. It is wrong as a legal matter. Here is a real short and hopefully digestible summary of the legal status of ISPs (I have had to write this many times because many anti-NN people are intentionally wrong).

2) At the birth of the commercial Internet, everyone was Title II common carrier. Every ISP was a Title II carrier and Congress did not feel the need to upset that in 1996. Your dial up ISP and your DSL broadband service were Title II.

3) Then in 2002 the FCC makes a call as to what to call those crazy cable modems that come from your cable television provider. They decide they are "information services" or Title I carriers subject to "ancillary jurisdiction" regulation.

4) This launches the Supreme Court case, Brand X litigation, which ends in 2005. DSL is STILL a Title II service up until this point and broadband from telephone was still a common carrier service.

law.cornell.edu/supct/html/04-…

5) One of the most noteworthy dissents in the telecom space is Justice Scalia's dissent here. He says ISPs are common carriers and the FCC is really contorting the law to say they are "information services"/Title I carriers.

law.cornell.edu/supct/pdf/04-2…

6) After Brand X, the FCC then moves forward and classifies DSL as an "information service." This article sums up that step in 2005 very well.

techlawjournal.com/topstories/200…

7) Most noteworthy as to what people thought.

"As the FCC classifies services as Title I information services, not subject to Title II regulation, it is also assigning, piece by piece, under "ancillary" jurisdiction, regulatory burdens to Title I information services."

8) This is why FCC Chairman Kevin Martin believed he had the power to go after Comcast when Bit Torrent happened. However, Comcast defeated the FCC in court and struck a blow at its "ancillary jurisdiction" theory.

This is 2010.

circleid.com/posts/20100406…

9) At the end of 2010, AT&T and NCTA were successful in convincing President Obama's FCC Chairman Julius Genachowski that "ancillary jurisdiction" still has lots of regulatory life and stick with that authority in the 2010 #NetNeutrality rules.

broadcastingcable.com/news/washingto…

10) AT&T's endorsement of the 2010 rules, since they basically helped write them.

"we are pleased that the FCC appears to be embracing a compromise solution"

attpublicpolicy.com/broadband/att-…

11) Verizon sues the FCC to put the nail in the coffin in "ancillary jurisdiction" regulatory power under Title I (since it is STILL argued that it exists). Verizon wins in 2014.

forbes.com/sites/realspin…

12) It is at this point of time, one year before the Title II Network Neutrality Order, that any pretense or assertion that the FCC has authority over ISPs under Title I of the Communications Act is laughable. The most they can do is require transparency per the courts rulings.

13) And that is what makes this draft order the FCC is circulating a significant departure. Republican and Democratic FCCs have tried to protect #NetNeutrality until today. This is not returning to status quo, it is uncharted territory.

apps.fcc.gov/edocs_public/a…

14) Because now it is undisputed that Title I authority of the FCC is basically zero authority. It took until 2014 to reach that conclusion. There is no 20 year status quo since it was an active debate and constantly litigated.