If this attempt at regulation is indeed headed for the courts, the central issue will be the FCC’s statutory authority to regulate the internet. This week’s action is based on Title I of the Telecommunications Act governing information services, as was the 2008 Comcast decision that was nullified in a federal appeals court earlier this year. Net neutrality advocates were hoping the commission would declare internet access a telecommunications service, which would fall under Title II of the act, one which more clearly empowers FCC rulemaking. But wireless providers lobbied hard against such a move, which they fear would give the agency too much power. Democratic Commissioner Michael Copps voted with Chairman Julius Genachowski on Tuesday, but not without deep reservations about the legal underpinnings of the new rule. Commissioner, welcome back to the show.

MICHAEL COPPS: I'm glad to be back.

BOB GARFIELD: Well, you voted for this rule with not much enthusiasm, it would appear. Let's start with what you like about it.

MICHAEL COPPS: Well, what I like about it is that we've gone on record in favor of an open internet. We've taken some positive steps. Our goal is to make sure that consumers in the future will be able to control their online experiences to the maximum extent possible rather than having a big telco or cable company control those experiences.

BOB GARFIELD: Tell me what your reservations were with the rule as passed.

MICHAEL COPPS: Well, I'd like to go farther faster. This has been pending for a long period of time. Telecommunications has generally been treated as under Title II jurisdiction and there are consumer protections and privacy and other things like that built in. What two previous commissions did between 2001 and 2009 was to wrench broadband and advanced telecommunications out of Title II and they put it over in something called Title I, where the authority is not nearly so clear, and that’s why we took a beating in court on the Comcast decision earlier on.

BOB GARFIELD: What makes you think that you won't take a similar beating with this rule? Isn't that very Comcast decision, which is currently in the appeals courts, apt to render irrelevant this rule and everything attached to it?

MICHAEL COPPS: You’re going to go to court no matter what you do around here. I've been at this place for ten years now and anything that we do, just about, ends up with some party dragging’ you into court to, to contest it. So that was one of my reservations with regard to the rule that we did, which is based on Title I. But I think the legal foundation, the superstructure is clearer under Title II than Title I. I think the courts would be more inclined to go along with it. So that was one of my reservations yesterday. And there were some others. And one of the biggest, of course, is I was looking for more in the way of parity between wireless and wireline or between fixed and, and mobile, however you want to differentiate that.

BOB GARFIELD: Yeah, let me ask about that, Commissioner. The telcos are going to be given a lot more latitude to throttle traffic, to block certain applications, and so forth, on wireless, where they say most of the traffic is moving, anyway. Is there any practical consumer benefit if wireless isn't more strictly regulated?

MICHAEL COPPS: I understand that there may be some differences in managing and administrating that right now, but the principle has to be loud and fast and clear. Eventually we have to make sure – and I hope that eventually is sooner, rather than later – that there is parity between wireline and wireless. Consumers have a right to expect their experience on wireless to come with the same kind of protections as the experience on wireline.

BOB GARFIELD: Why can't we trust the market to take care of itself, to provide the kinds of consumer benefits we all wish to see?

MICHAEL COPPS: The private sector is always the lead locomotive. It’s always the engine that gets things done. It’s where the creativity comes from. But we build best when there’s some public/private partnership. And you can go back to the early history, when our infrastructure need at that time was to have bridges and turnpikes and roads and canals. We did all that together. We got electricity out to everybody that way, even plain old telephone service. The aberration was the eight years between 2001 and 2009, when we became somehow captive to this unhistorical aberration, that the market could do all of this by itself and let's forget public policy altogether. And as a result of that, we're 15 or 20th, or something like that, in the world with regard to getting broadband out to all of our citizens. We're falling behind. And this is an opportunity-creating technology that is the central infrastructure challenge of the early part of the 21st century. We need to get serious about it, and we have not been serious about it, until the last year or so.

BOB GARFIELD: Commissioner, thank you so much.

MICHAEL COPPS: I enjoyed talking to you.

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BOB GARFIELD: Commissioner Michael Copps is a Democratic member of the Federal Communications Commission.