Posted by: Hank Hultquist on June 28, 2010 at 12:47 pm
“To define is to limit.” Or so said Oscar Wilde in The Picture of Dorian Gray.
When it comes to regulating the Internet, however, the FCC is apparently unwilling to define its regulatory limits.
In its “Third Way” NOI, the FCC did not define the Internet transmission service (what it dubs “Internet Connectivity Service”) that it proposes to regulate under Title II of the Communications Act. Instead, the NOI simply describes it, “at a high level,” as the service that “enables users to transmit data communications to and from the rest of the Internet.”
That’s all we get. What could that definitional blob mean?
Well, it appears to encompass a broadband Internet access provider’s entire Internet infrastructure – from the first mile copper, fiber or cable lines that connect each end user to a network node in their neighborhood all the way to the provider’s backbone routers, high-capacity links, servers, and backbone peering relationships that enable the broadband Internet access provider’s customers to connect with customers of other networks.
Without these backbone-to-backbone connections, no customer would be able to “transmit data communications to and from the rest of the Internet.” Don’t just take my word for it, the FCC itself in one of its policy white papers said: “In order to provide end users with such universal connectivity, backbones must interconnect with one another to exchange traffic destined for each other’s end users. It is this interconnection that makes the Internet the ‘network of networks’ that it is today.”
If you were expecting the FCC to precisely define the service it intends to regulate and how it meets the statutory definition of a “telecommunications service” from the Communications Act, you were as disappointed as I was. And, if you expected the FCC to explain in detail how its Title II regulation of that service does not inadvertently sweep in a wide range of other Internet-based products that are bundled with a transmission component (aka “Internet Connectivity Service”), such as eReaders, for example, you were disappointed again.
Without any further explanation at all, the FCC simply announced it was not addressing “the Internet backbone” or any other facilities or services that fall within its all-encompassing non-definition of “Internet connectivity service.”
In place of that discussion and analysis of the limits of Title II, the NOI merely pleads that it is restoring the status quo regime that existed in the dial-up world and continues to exist for the DSL transmission services offered under Title II by more than 840 telephone companies (for those that want to impress their friends at cocktails parties, these are the carriers participating in the NECA tariff.
This “status quo” assertion though is factually incorrect – neither dial-up transmission nor NECA’s DSL transmission service enables users to communicate with the “rest of the Internet.”
Stay with me, now, because this takes some serious unpacking…In the dial-up world, local phone service was, in fact, regulated under Title II. But while local phone service was needed to gain access to a dial-up ISP (think AOL), it did not by itself “enable users to transmit data communications to and from the rest of the Internet.” Instead, it was the ISP, an unregulated, Title I information service provider who supplied the end user with the ability to “to communicate with others who have Internet connections, send and receive content, and run applications online.” It supplied the end user with an IP address, was responsible for routing the end user’s packets to the Internet, and announced the end user’s IP address to the rest of the Internet.
Without the ISP, the only thing the end user could do with his or her local telephone service was . . . yes, you guessed it . . . make telephone calls.
The same is also true of DSL transmission services (again, offered under the NECA tariff). Those services consist of a transmission link (ADSL transport) running from an end user’s home to a network node in the neighborhood (a DSLAM) combined with a transmission link (special access transport) running from the DSLAM to an ISP’s facilities (point of presence). As with dial-up, it is the unregulated Title I ISP that provides the end user with an IP address and handles all of the routing and other functions necessary for the end user to communicate with other users of the Internet.
So, what am I getting at?
If the FCC means to classify under Title II only a portion of the network facilities that make up Internet access, it should identify those facilities with precision. If, however, the FCC is proposing for the first time to regulate ISP servers, routers, and router-to-router connections under Title II, it should make those intentions plain and put to rest the argument once and for all that it is not regulating the Internet.
We all understand why the proponents of the Third Way do not want to say they are regulating the Internet – in the latest Wall Street Journal/NBC News poll, the overwhelming majority, nearly two-thirds of respondents, say Internet providers are either regulated enough, or should be regulated less.
Unfortunately, the Third Way’s limitless description of “broadband Internet connectivity service” would make even Oscar Wilde blush.
