The most important Internet law was written in 1934

The net neutrality debate came to a head this week when President Barack Obama spoke up in favor of classifying the Internet as a common carrier under Title II of the Telecommunications Act.

But what is Title II, and why does it matter to net neutrality?

Title II is actually a “title,” or section, of the Communications Act of 1934. Among other things, it created the Federal Communications Commission (FCC).

The FCC was tasked with overseeing communications over wire and airwaves, including the telegraph, telephone, and broadcast radio. These were also deemed as “interstate commerce” by earlier Supreme Court decisions, putting them in the federal government’s jurisdiction.

There are a couple of key things about the Act and its Title II:

Technological bias: The Act is “technologically biased,” meaning that it’s doling out regulations according to specific technologies — radio, telephone, etc. This became a problem as new types of communication technologies, namely the Internet, came into being, which were not explicitly mentioned in the Act.

Common carriers: The Act’s Title II establishes these communication technologies as common carriers, meaning that the FCC, as the governmental body, will have authority over them and they can’t discriminate in how they deliver “goods” (phone service, Internet service, etc.) to the public. A common carrier needs to be accessible to anyone who wants to be a customer, like a public road or the U.S. Postal Service. A contract carrier, in contrast, only transports goods for certain clients, and turn down customers if it wants.

Net neutrality advocates are in favor of the Title II — or common carrier — interpretation because it would keep the Internet “fair” and equal for all.

But there’s another act, and a key section of that act, which are important to net neutrality: The Telecommunications Act of 1996 and its Section 706.

This act, signed into effect by the Clinton Administration, explicitly included the Internet in its legislation.

It also categorized media based on its content, rather than the technology used, as the 1934 Act did. Choosing to interpret Internet and Internet service provider (ISP) regulation through this lens would mean that “fast lanes” could be allowed. Video streaming services like Netflix could be regulated and dealt with in a different way than email, for example.

And this is really where much of the fight comes down to: Should the Internet be seen as a “public utility,” something that should be fair and equally accessible to all? Or should ISPs be allowed to dictate the rules in their own way, charging higher prices for certain services or restrict access to customers who don’t purchase those services?

On Monday, President Obama expressed his support for the Title II interpretation, stating that the U.S. “cannot allow Internet service providers (ISPs) to restrict the best access or to pick winners and losers in the online marketplace for services and ideas.” He added that this should extend to wireless Internet as well.

Big telecommunications companies, on the other hand, have been leaning the other way. Even if they express support for “Net neutrality” in general terms, telcos don’t want to be classified as common carriers under Title II.

Who will win this fight? That’s up to the FCC — unless Congress or the courts intervene. But keep in mind: big telcos have a history of not losing fights as big as this.