Fallacies behind Reclassifying Broadband Internet Access Service as an Information Service

Abstract

The Federal Communications Commission (FCC) is required by law to classify commercial broadband Internet access service (BIAS) as offered in the U.S. today as a telecommunications service, which is regulated under Title II of the Communications Act. Congress defined “telecommunications service,” and the FCC does not have authority to alter or ignore the definition established by law. The core of today’s Internet access service is IP Packet Transfer, which transfers information without change of form or content. IP Packet Transfer fits the legal definition of telecommunications service, and does not fit the legal definition of information service [CP14, PE15], as the FCC found in 2015 [FC15]. This paper shows that the assertions to the contrary in the latest FCC Notice of Proposed Rulemaking (NPRM) [FC17] are incorrect, often based on an incorrect representation of the technology. To conclude that BIAS providers are information service providers, the FCC consistently gives BIAS providers credit for services offered by others. Using FCC logic, I could call 5th Avenue a “food provider,” because I drive over 5th Avenue on my way to the grocery store. Moreover, most of the assertions in the NPRM made to argue that a BIAS is an information service are at least as applicable to today’s telephone network, much of which is now IPbased. Thus, an FCC decision in 2017 that a BIAS is an information service while a telephone service is a telecommunications service would be a textbook example of being arbitrary and capricious.

Beyond simply applying the legal definitions, there have been two common arguments in favor of changing the classification of commercial BIAS services from telecommunications service to information service, both of which are baseless. One such argument is that the FCC should not classify BIAS as telecommunications because this would impose onerous “utility” regulations that are contrary to the public interest. This argument is ludicrous for two reasons. First, this argument contradicts the law. Congress foresaw that strict regulation would not always be the answer, and granted the FCC significant flexibility to regulate as appropriate or to forbear entirely from imposing many regulations that are authorized under Title II. Thus, classification as a telecommunications service does not require onerous regulations. I have argued for many years [PE06] and in the current proceedings [PE17] that the public interest is best served by light network neutrality regulations, which prevent Internet service providers (ISPs) from becoming information gatekeepers while still giving them flexibility to provide valuable services and to innovate. Such a policy is compatible with classification as a telecommunications service when combined with forbearance where appropriate. (So far at least, the courts have not found an effective light-touch policy to be compatible with classification as an information service.) Second, regardless of what the FCC might think about whether applying Title II is in the public interest, the FCC is still required to follow the law, and the law is clear; Title II applies.

The other baseless argument is that the FCC and the courts have already decided that BIAS is an information service in the past, and the FCC in 2017 must conform to decisions of the distant past, while strangely ignoring the FCC’s decision of 2015. Internet technology and Internet services have changed dramatically since the 1996 Telecommunications Act was passed. Consequently, the FCC must consider how to classify Internet access as it is offered today, not as it was offered in years past. To the extent that the FCC does consider past decisions, more recent evaluations are more likely to be relevant to today, and the most recent evaluation found that a BIAS is a telecommunications service. If others adopt the eccentric approach to precedent proposed in this NPRM, then the State of Michigan might conclude in perpetuity that drinking water in the City of Flint should be classified as “safe” based on the findings of a 1990s study, even if those findings are contradicted by all recent analyses.

Keywords: Network Neutrality, Open Internet, Internet Freedom, Telecommunications Service, Information Service, Federal Communications Commisssion, Communications Act