Broadband Internet Access Service is a Telecommunications Service
68 Pages Posted: 8 Sep 2018
Date Written: August 27, 2018
The FCC’s recent Restoring Internet Freedom Order reclassified broadband Internet access service from a telecommunications service to an information service. The Order claims that its reclassification is justified as a reinterpretation of relevant statute, and is bolstered by its reinterpretation of relevant precedent from both the FCC and the courts.
However, the Supreme Court has previously set out in Brand X a specific test for determining whether Internet access service is a telecommunications service, and that test states that the determination turns on the factual particulars of how Internet technology works and how it is provided.
In this paper, we analyze the reclassification of broadband Internet access service in the Restoring Internet Freedom Order, and the relevant precedent from the FCC and the courts from the 1970s through 2017. We find that the Restoring Internet Freedom Order improperly reinterprets the definition of broadband Internet access service to include applications such online storage, parental controls, and email; makes several critical errors in its determination that ISP DNS and caching fall within the telecommunications systems management exception; and reinterprets the definition of information service in a manner that both misconstrues precedent and produces an internal inconsistency that invalidates the interpretation. We find that the Order does not properly apply the Brand X test for determining whether the telecommunications components of broadband Internet access service are separable from any information service capabilities of the service, and that a proper application of the Brand X test would have determined that broadband Internet access service is a telecommunications service.
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