Tim Wu Disputes Telecommunications Carriers’ Misrepresentation in Network Neutrality Filing

Professor Tim Wu submitted a brief to expose an important and serious misrepresentation contained in the telecommunications carriers’ challenge to the Federal Communications Commission’s Open Internet Order. USTelecom argues that Congress, when it passed the Telecommunications Act of 1996, specifically and unambiguously intended that broadband Internet service be an “information service.” It bases that argument on the premise that there existed a “long-settled regulatory understanding” as to that effect.

The premise is both incorrect and gives a misleading impression of the FCC’s historic practice. What Congress codified in its adoption of the “basic/enhanced” regime were evolving categories used by the Commission to make policy based on both technological and competitive considerations. Over the course of the decades from the FCC’s first “Computer Proceeding” onward the FCC routinely reexamined and reclassified services in light of changing market conditions and technical realities. Congress blessed the FCC's methodology for classifying services, which it has now applied in the case on net neutrality.