Posted by: Bob Quinn on June 24, 2010 at 11:43 am
The problem with the Open Internet fight generally and the Title II fiasco specifically is that fiction tends to trump facts in the debate. It’s understandable. It’s easier sometimes to understand and write about the vague and empty rhetoric than it is to unpack the facts and legal framework that lie at the heart of the dispute.
But, with the FCC proposing, unfortunately, to dip the Internet into the sugar-coated world of Title II regulation – light touch or not – specificity and clarity are really essential to understanding the extent and limits to the regulation that the FCC and particularly its General Counsel are advocating.
So, starting today, and over the coming days, we will do the hard work of unpacking the complex and esoteric legal issues of this debate so you won’t have to.
It’s been said repeatedly that the FCC must examine Title II regulation to put the Open Internet on a “solid legal foundation.” See here and here.
I will begin our examination by noting that the absence in the Notice of Inquiry (“NOI”) issued last week of that “solid legal foundation” is a very large problem which is compounded by the notion that the FCC might actually attempt to go directly from NOI to Final Order in this proceeding.
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Posted by: AT&T Blog Team on June 16, 2010 at 4:08 pm
Authored by Paul Mancini, AT&T Senior Vice President and Assistant General Counsel
Over the last month, various members of the FCC and others have publicly promoted the agency’s proposal to change the classification of broadband Internet access service. In a nutshell, the FCC wants to take broadband Internet access service out of the competitive-oriented Title I “information service” category where it has resided for more than a decade and put it into the old-style, monopoly phone-oriented Title II “telecommunications service” category. No need to worry about those heavier Title II regulations deterring investment, innovation and jobs, say these folks, because the agency will only apply what it thinks are the six most essential sections of Title II and it will “forbear” from all the rest.
As more details on the legal theories girding this proposal come out, we’ve noticed a rather curious contradiction in the FCC’s proposal. On one hand, when the FCC explains why it can jettison over a decade of bi-partisan deregulatory precedent and impose Title II common carrier regulations on the Internet, the agency claims that the legal threshold for “reclassification” is quite low. Citing the Supreme Court’s decision in FCC v. Fox Television Stations, the FCC says it need not show any major change in circumstances or “market shift;” it only needs to take a “fresh look” at Internet technology and the broadband market and then “simply provide a reasoned justification” for its decision. (As you might expect, we and others have a very different view of Fox)
On the other hand, when explaining why nobody should be concerned that the FCC will later rely on this same permissive interpretation of Fox to simply “unforbear” and impose some or all of the remaining Title II regulations on broadband Internet access, the agency says that reversing its forbearance precedent would involve a “painstaking process” requiring it “to compile substantial record evidence that the circumstances it previously identified as supporting forbearance had changed.”
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Posted by: Hank Hultquist on May 18, 2010 at 11:45 am
Harold Feld has an interesting response to Bob Quinn’s recent Pickett’s Charge blog post. While Harold makes a number of points, I want to focus on one in particular. Under the heading of “Argument #2,” he raises questions about what other services might be pulled into the kind of classification analysis that his Fantasy Baseball version of the FCC is engaged in.
For purposes of fantasy competition only, let’s assume that Harold is right and just “Because all Information Services are Delivered Via Telecommunications, Classifying Broadband Access as a Telecommunications Service Would [Not] Require Classifying Facebook and Akamai as Telecommunications Services.” Perhaps Harold is right that the FCC’s channeling of Justice Scalia will not result in reclassification of all information services as mixed information and telecommunications services. Under Scalia’s reasoning, there might be services where the “telecommunications component” does not seem like a separately identifiable part of the offer (to a discerning regulator).
At the same time, the FCC probably cannot fire a magic bullet that affects the classification only of Internet access services. There are three kinds of services that I’m particularly interested in here. The first is the category that we at AT&T think of as “emerging devices.” Things like e-readers, navigation devices, wireless picture frames (the list could go on and on). Users of these services and devices do not purchase wireless data services from traditional wireless providers. Instead, their service provider bundles end-to-end wholesale data transport services (including the user’s “last mile”) with their own server infrastructure to provide each particular service.
Under the FCC’s prior understanding, where information and telecommunications services were mutually exclusive categories, most people would have assumed that such services fell in the information bucket. Now we will all have to consider whether they contain distinct information telecommunications components. Do consumers view these services as including a “transmission component?” Should such services expect to be collateral damage under the proposed approach?
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