• by Wendy Davis , Staff Writer @wendyndavis, February 3, 2015

On Monday, news broke that Federal Communications Commission Chairman Tom Wheeler appears poised to propose that the agency declare broadband a utility service.

Predictably, the development was cheered by net neutrality advocates like the Free Press, who have long argued in favor of reclassification. Free Press and other groups say that declaring broadband a utility service -- regulated under Title II of the Telecommunications Act -- is the first step toward imposing the kinds of common-carrier rules that would prohibit broadband providers from charging some companies higher fees for faster delivery of their content.

“If the FCC votes to reclassify under Title II, it will be one of the greatest public policy victories in decades,” Free Press said today. “Title II is the law the FCC should have applied all along, and reclassification is a proactive push to protect the rights of Internet users at a time when companies like AT&T, Comcast and Verizon are trying to control the market and strengthen their monopoly status.” 

Internet service providers, on the other hand, aren't celebrating the news.

Verizon said months ago in a white paper that reclassification “would be unlikely to survive appeal.”

And this week, AT&T said the FCC doesn't have a factual basis to declare broadband a utility service.

“In order for the FCC to find that an ISP is operating as a common carrier, it would have to examine the terms on which that ISP holds itself out to customers to assess whether it offers to serve indifferently, or whether it retains the ability to decline to serve customers,” AT&T vice president Hank Hultquist wrote in a blog post. “The underlying record in this proceeding simply does not contain the level of detail needed for the FCC to determine that any ISP, let alone every ISP, holds itself out to serve customers indifferently.”

He adds that he has “no illusions” that his arguments will affect the outcome of the FCC's vote, but suggests that the FCC won't have the last word about the subject.

“When the FCC has to defend reclassification before an appellate court, it will have to grapple with these and other arguments,” he writes. “Those who oppose efforts at compromise because they assume Title II rests on bullet proof legal theories are only deceiving themselves.”