Neither Fish Nor Fowl: New Strategies for Selective Regulation of Information Services
59 Pages Posted: 1 Aug 2007
Date Written: August 2007
This paper will examine whether and how the Federal Communications Commission ("FCC") can lawfully deregulate most next generation network services, while selectively depriving some apparently qualified ventures from fitting within an otherwise expansive deregulatory "safe harbor." The FCC has erected a regime largely predisposed to treat next generation services as information services free of interconnection, unbundling, tariffing, line sharing and other requirements Title II of the Communications requires the FCC to impose. To support its deregulatory mission the FCC has found ways to subordinate the telecommunications components in a service that blends telecommunications transmission of bits with information services. For example, in reclassifying Digital Subscriber Link ("DSL") Internet access from a telecommunications service to an information service the FCC combined the need for deregulatory parity with a new finding that the once stand alone telecommunications service characteristic of DSL had become inextricably integrated with information services with the latter predominating.
Notwithstanding the urge to deregulate, either on rational or doctrinal grounds, the Commission has had to confront the fact that competition alone will not ensure the achievement of all Congressionally mandated, or FCC identified public interest objectives. On four separate occasions the FCC has imposed new regulatory requirements on Voice over the Internet Protocol ("VoIP") services and once for all types of broadband Internet access information services.
The paper also examines whether and how Title I of the Communications Act can provide the basis for the FCC to expand its "ancillary jurisdiction" and whether reviewing courts will defer to the Commission's decision to expand its regulatory wingspan. The paper concludes that Title I provides a shaky foundation to support regulation particularly in the absence of separate legislation supporting jurisdiction. The paper also concludes that the FCC cannot expect to qualify for judicial deference based primarily on the Commission's creative interpretation of statutory definitions.
Keywords: next generation networks, VoIP, ancillary regulation, telecommunications policy, information services
JEL Classification: K23, L51, L96
Suggested Citation: Suggested Citation