In the 1990s, consumers relied on much slower dial-up internet service, and Internet Service Providers (ISPs) offered bundled services like email and web hosting along with the internet access that they offered.  That led regulators to classify internet access as an “information service.” But broadband internet today is different—it’s faster, always on, and mainly used to access content from places like Netflix, Spotify, or Google, not bundled services from ISPs.

The core issue in this case is whether BIAS should be classified as a telecommunications service or an information service under the Telecommunications Act of 1996.

This distinction matters because telecommunications services are subject to stricter regulatory oversight under Title II of the Act, while information services are not.

In this case, the Ohio Telecom Association and other telecommunications companies are suing the Federal Communications Commission (FCC), challenging its net neutrality rule, which relies on the FCC’s decision to classify broadband internet as a “telecommunications service” under Title II of the Act. Telecommunications companies want ISPs to remain classified as an “information service” and be subject to fewer regulations.

The classification of BIAS as a telecommunications service is crucial to the implementation of the net neutrality rule, which is designed to ensure that everyone has equal access to all content on the Internet without ISPs controlling what users can see or how fast they can access certain sites. 

Net neutrality would prevent companies from blocking or slowing down access to specific websites or charging extra for better speeds to certain websites. If the telecom companies were to get their way–to be classified as “information services,” they would not be bound by net neutrality requirements and could exercise broader control over internet traffic at the expense of consumers.

Democracy Forward filed an amicus brief on behalf of Jon M. Peha—a former FCC Chief Technologist —defending the FCC’s authority and position in this case. 

Our brief explains that BIAS’s primary function is to transfer data from one place to another, which is the definition of a “telecommunications service.” Therefore, regulating BIAS, like all other services that serve this same data-transfer function, would be more protective for consumers. This would ensure that internet providers can’t unfairly control or block access to certain websites or services, guaranteeing fair internet access. 

Doing so would ensure that internet providers can’t unfairly control or block access to certain websites or services, guaranteeing fair internet access for all.