The 6th U.S. Circuit Court of Appeals’ recent decision striking down the Federal Communications Commission’s (FCC) latest net-neutrality rules did more than just settle a decades-long debate about broadband regulation; it also exposed a fundamental flaw in the United States’ approach to communications policy. In a nutshell, the issue is that we treat traditional telephone service as a heavily regulated “telecommunications service” under an outdated New Deal-era framework.
For nearly 90 years, telephone networks have been regulated as common carriers under Title II of the Communications Act, facing extensive obligations on rates, service quality, and universal access. This made sense when AT&T held a monopoly over voice communications. But today’s technology landscape bears little resemblance to that era.
Why the Current Rules Don’t Work
The Communications Act of 1934—as updated by the Telecommunications Act of 1996—establishes two primary regulatory frameworks: Title I, which allows flexible, minimal oversight for “information services,” and Title II, which imposes stringent rules on “telecommunication services.” For decades, telephone networks have been regulated under Title II, burdened with such obligations as rate-setting, nondiscrimination, and universal service contributions.
The court’s ruling confirms that broadband internet must be classified as an “information service” under Title I because it enables users to store, retrieve, and manipulate data—not just transmit it. But this raises an obvious question: Why should traditional phone service still face stricter Title II regulation when modern telephone networks are increasingly integrated with the internet?
Consider how we communicate today. Only a quarter of U.S. households have a landline phone, down from nearly 50% a decade ago. Platforms like Zoom, WhatsApp, and Microsoft Teams have largely replaced traditional phone calls. Voice communication now routinely travels through Voice over Internet Protocol (VoIP) technology. Traditional carriers have modernized their networks to handle integrated voice, video, and data services.
A Better Path Forward
Rather than forcing modern communications into an outdated regulatory framework, Congress should move telecommunications services into the more flexible Title I regime that currently governs information services. This would recognize that all modern communications involve information processing and enhanced capabilities beyond mere transmission.
The success of broadband under Title I demonstrates the benefits of this approach. Since the early 2000s, when broadband was first classified as an information service, consumers have benefited from dramatic increases in speeds, availability, and competition. This progress came through market innovation, not prescriptive regulation.
Reclassifying telecommunication services under Title I would level the regulatory playing field, enabling traditional carriers to compete more effectively with internet-based platforms. It would encourage investment in next-generation infrastructure by reducing compliance costs and regulatory uncertainty. Most importantly, it would create a unified framework that better reflects how communications services actually work in the digital age.
Protecting Consumers and Universal Service
Critics may worry that moving phone service to Title I would abandon essential consumer protections. But Title I doesn’t mean no regulation; it simply means smarter, more adaptive oversight. The Federal Trade Commission (FTC) and U.S. Justice Department (DOJ) would retain authority to address unfair or anticompetitive practices. The FCC could still implement targeted consumer protections through its general powers under Title I.
Universal service—ensuring affordable access for all Americans—remains crucial. But we can preserve this goal without Title II’s rigid requirements. Policymakers should develop modernized universal-service mechanisms that reflect today’s competitive marketplace and integrated technologies.
Time for Action
The 6th Circuit’s decision should be a wakeup call for policymakers. Rather than continuing to debate the regulatory classification of broadband, it’s time to rethink the classification of telecommunication services. Congress should create a unified framework under Title I that would reflect how technologies have advanced, promote competition, and encourage innovation across the entire communications ecosystem.
Moving telecommunications services to Title I would provide regulatory certainty, while maintaining the light-touch approach that has allowed the internet to flourish. It would end the constant regulatory ping-pong over service classification that has consumed the FCC and the courts. Most importantly, it would create a regulatory framework suited to the technologies and markets of the 21st century.
The court has made clear that broadband must be classified as an information service under current law. Rather than fighting this conclusion, policymakers should embrace it, and extend the same modern regulatory framework to all communications services. By advancing a modernized approach, regulators can finally move past the regulatory battles of a bygone era and ensure that America’s communications infrastructure remains a global leader in the 21st century.