Mobile Broadband Internet Access Service Is a Commercial Mobile Service, and Hence Must Be Regulated as a Common Carrier Service
Information & Communications Technologies Law, vol. 27 no. 3, 2018, pp. 304-366
Posted: 8 Sep 2018 Last revised: 5 Dec 2018
Date Written: August 27, 2018
The FCC’s recent Restoring Internet Freedom Order reclassified mobile broadband Internet access service from a commercial mobile radio service to a private mobile radio service. The result of this reclassification is to eliminate Title II common carrier regulation of mobile broadband Internet access service. In turn, elimination of common carrier regulation was used by the FCC to repeal most of the net neutrality protections on mobile broadband service.
The reclassification results in an incredible assertion: that the most important public mobile service of our time is classified under statute as a private mobile service. This paper asks: what led the expert agency to conclude that the public Internet is not part of the public switched network, and that mobile broadband Internet access service is a private mobile service?
The Order asserts that its reclassification is justified as a reinterpretation of relevant statute, and is bolstered by its reinterpretation of relevant precedent from Congress and the FCC. However, the Order is very limited in its consideration of precedent, and its discussion and understanding of the relevant technology is almost nonexistent.
In this paper, we first analyze the relevant precedent from Congress, the FCC, and the courts from the 1940s through 2017. We then analyze the reclassification of mobile broadband Internet access service in the Order.
We find that the Restoring Internet Freedom Order’s lack of consideration of the relevant precedent and technology from the 1940s through the 1980s undermines its interpretation of the 1993 statute on which it relies. We further find that proper consideration of precedent and technology would lead to the opposite conclusion. In particular, we find that the Order’s reversion to the 1994 definitions of public switched network and interconnected service ignores the growth of the public switched network to include the Internet, and is thereby contrary to both statute and precedent. We also find that the Order’s conclusion that the public switched telephone network and the Internet are separate non-interconnected networks is factually wrong, on the basis of PSTN and Internet architecture. Critically, we find that the Order’s justification for reclassification ignores the fact that in order for meaningful communication to occur, the users’ devices and subscribed services must be compatible. This fact, which has formed the basis for many decades of statute and precedent, undermines the Order’s statutory interpretation.
Finally, we find that a proper interpretation of relevant statute and precedent leads to the opposite conclusion of the Order, and that mobile broadband Internet access service is a commercial mobile service. Consequently, we find that statute mandates that mobile broadband Internet access service be classified as a commercial mobile service and regulated as a common carrier service. This finding lays the foundation for reinstatement of net neutrality protections on mobile broadband service.
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