Originally published: March 8, 2010
Last updated: March 8, 2010 - 3:28pm
The Federal Communications Commission agreed with the cable industry that cable modem Internet access wasn't a basic "telecommunications" service because pure transport hadn't been sold separately by them. By integrating transport with other services (like hosting and caching), the cable industry had deregulated itself.
Then the Supreme Court deferred to the Commission's classification of cable modem services in 2005 (Brand X). Justice Scalia characterized the Commission's argument for deregulation as "[W]hat the Commission hath given, the Commission may well take away - unless it doesn't." Right after the Brand X decision came down, the Commission announced that it was deregulating DSL access to the Internet as well. For both of these steps, the Commission decided to place Internet access under what it called its "Title I" ancillary jurisdiction. It could have decided not to apply some elements of Title II common carrier jurisdiction instead ("forbearance"), but it didn't take that path. These decisions left the providers of high-speed Internet access free to discriminate in any way they chose. Around the same time, there was further consolidation in the telephone services market. SBC merged with AT&T and took the AT&T name; Verizon merged with MCI. Internet access, meanwhile, continued to replace telephone as Americans' general-purpose communications network. When Comcast in the fall of 2007 started throttling BitTorrent, the Commission declared that this amounted to unreasonable network management. It said that its authority to issue this kind of declaration came from its ancillary Title I jurisdiction. Now the DC Circuit has signaled that it is likely to find that the Commission didn't have the authority it claimed under Title I to say anything about what Comcast had done. This signal has caused a good deal of consternation in many quarters.
Now what? Where does the FCC's authority to say anything about the basic transmission of Internet communications come from? If the FCC lacks this authority, can it say anything about universal service obligations shifting to support high-speed Internet access, or anything else having to do with transmission?
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