Framework for Broadband Internet Service

Description

On June 17, 2010, the The Federal Communications Commission opened a new proceeding to identify the legal approach that will best support its efforts to ensure universal access to affordable, high-quality broadband services; promote broadband innovation, investment, and competition; and protect and empower consumers. A Notice of Inquiry adopted by the agency begins a public process to consider possible frameworks for addressing the high-speed connections most consumers use to access the Internet.

A recent decision of the U.S. Court of Appeals for the D.C. Circuit cast doubt on prior understandings about the FCC's ability to ensure fair competition and provide consumers with basic protections when they use today's broadband Internet services. This action begins the process of identifying the best way forward to ensure a solid and narrowly tailored legal foundation for implementing key recommendations of the National Broadband Plan -- such as refocusing the federal universal service program on promoting broadband deployment and adoption, ensuring consumers have access to relevant information about their broadband services, customer privacy, and access for people with disabilities - as well as for preserving the open Internet.

The Notice of Inquiry asks for public comment on issues including:

• Whether the FCC's "information service" classification of broadband Internet service remains legally sound and adequate to support effective performance of the Commission's responsibilities;
• The legal and practical consequences of classifying broadband Internet connectivity as a "telecommunications service" to which all the requirements of Title II of the Communications Act would apply; and
• A "third way" under which the FCC would reaffirm that Internet content and applications remain generally unregulated under Title I of the Communications Act; identify the Internet connectivity service that is offered as part of wired broadband Internet service as a telecommunications service; and forbear under Section 10 of the Act from applying all provisions of Title II other than the small number that are needed to implement fundamental universal service, competition and market entry, and consumer protection policies.

The Notice also seeks comment on the appropriate classification of terrestrial wireless and satellite broadband Internet services, as well other issues.

Issues

In the 1996 Act, Congress made clear its desire that the Federal Communications Commission promote the widespread availability of affordable Internet connectivity services, directing the FCC to adopt universal service mechanisms to ensure that “[a]ccess to advanced telecommunications and information services . . . [is] provided in all regions of the Nation.” Congress also instructed the FCC to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans."

The FCC's classification decisions in the Cable Modem Declaratory Ruling and the later follow-on orders were intended to support the policy goal of encouraging widespread deployment of broadband. The FCC’s hypothesis was that classifying all of broadband Internet service as an information service, outside the scope of any specific regulatory duty in the Act, would help achieve Congress’s aims.

The FCC adopted the Internet Policy Statement which articulated four principles “[t]o encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet,” and to “foster creation adoption and use of Internet broadband content, applications, services and attachments, and to insure consumers benefit from the innovation that comes from competition.” The principles are:

• consumers are entitled to access the lawful Internet content of their choice;
• consumers are entitled to run applications and use services of their choice, subject to the
• needs of law enforcement;
• consumers are entitled to connect their choice of legal devices that do not harm the network;
• and
• consumers are entitled to competition among network providers, application and service
• providers, and content providers.

1. Continued Information Service Classification and Reliance on Ancillary Authority

The FCC seeks comment on maintaining the current classification of wired broadband Internet service as a unitary information service. Under this approach, the FCC would rely primarily on our ancillary authority to implement the Commission’s broadband policies. The FCC seeks comment on whether its ancillary authority continues to provide an adequate legal foundation.

a. Universal Service
Can the Commission reform its universal service program to support broadband Internet service by asserting direct authority under section 254, combined with ancillary authority under Title I?

b. Privacy
The FCC seeks comment on the best approach for ensuring privacy for broadband Internet service users under the Commission’s current information service classification, and any legal obstacles to protecting privacy that may exist if the Commission retains that classification.

c. Access for Individuals with Disabilities
The FCC seeks comment on the best legal approaches to extending disability-related protections to broadband Internet service users under the Commission’s current information service classification.

d. Public Safety and Homeland Security
The Comcast decision did not address questions of national defense, public safety, homeland security, or national security. Are there bases for asserting ancillary authority over broadband Internet service providers for purposes of advancing such vital and clearly enumerated Congressional purposes?

e. Addressing Harmful Practices by Internet Service Providers
Although the D.C. Circuit rejected the legal theory the Commission relied on to address Comcast’s interference with its customers’ peer-to-peer transmissions, some have suggested that other theories of ancillary authority could support Commission action to protect against harmful practices of this sort.

2. Application of All Title II Provisions

Title II of the Communications Act provides the FCC express authority to implement, for telecommunications services, rules furthering universal service, privacy, access for persons with disabilities, and basic consumer protection, among other federal policies. The FCC seeks comment on whether the legal and policy developments discussed above and the facts of today’s broadband marketplace suggest a need to classify Internet connectivity as a telecommunications service, so as to trigger this clear authority. The FCC asks whether that approach would be consistent with our goals of promoting innovation and investment in broadband, or would result in overregulation of a service that has undergone rapid and generally beneficial development under our deregulatory approach.

a. Current Facts in the Broadband Marketplace
The FCC asks whether or not the facts of today’s broadband marketplace support a conclusion that providers now offer Internet connectivity as a separate telecommunications service. The FCC seeks comment on what facts are most relevant to this inquiry.

b. Defining the Telecommunications Service
If the FCC were to classify a service provided as part of the broadband Internet service bundle as a telecommunications service, it would be necessary to define what is being so classified. The FCC asks commenters to propose approaches to defining the telecommunications service offered as part of wired broadband Internet service, assuming that the FCC finds a separate telecommunications service is being offered today, or must be offered.

c. Consequences of Classifying Internet Connectivity as a Telecommunications Service
If the FCC were to classify Internet connectivity service as a telecommunications service and take no further action, that service would be subject to all requirements of Title II that apply to telecommunications service or common carrier service. If the FCC chose, it could provide support for Internet connectivity services through the Universal Service Fund under section 254. Under section 222, the FCC could ensure that consumers of Internet connectivity enjoy protections for their private information. Consumers with disabilities would see greater accessibility of broadband services and equipment under section 255. And the FCC could protect consumers and fair competition through application of sections 201, 202, and 208.

The FCC seeks comment on whether the benefits to classifying Internet connectivity as a telecommunications service would outweigh the costs of doing so, including the application of numerous regulatory provisions that the FCC, in its information service classification orders, determined should not apply. Are there any elements of our framework that the Commission could not pursue if it adopted a Title II classification? Under Title II classification what role, if any, might be played by third party standard setting bodies?

3. Telecommunications Service Classification and Forbearance

In addition to the traditional information service and telecommunications service approaches discussed above, we identify and seek comment on a third option for establishing a suitable legal foundation for broadband Internet and Internet connectivity services. This third way would involve classifying wired broadband Internet connectivity as a telecommunications service (as suggested above), but simultaneously forbearing from applying most requirements of Title II to that connectivity service, save for a small number of provisions.

a. Forbearing To Maintain the Deregulatory Status Quo
b. Identifying the Relevant Telecommunications Service and Telecommunications Carriers
c. Defining the Geographic Scope for Analysis
d. Identifying the Provisions of Title II from Which the FCC Would Forbear
e. Application of the Statutory Forbearance Criteria
f. Maintaining Forbearance Decisions

Comment due date: 07/15/2010

Comment reply due date: 08/12/2010