McAdams On: Reclassifying Broadband
5/28/2010 11:06:33 AM
The FCC has come up with a middle way for
regulating broadband. The stuff on the Internet would remain a Title I
information service. The network that carries the stuff would be regulated as a
Title II telecommunications service. This would give the commission more legal
leverage to enforce network neutrality. It could tell Comcast to stop throttling
bandwidth hogs, and make it stick.
Broadband is currently classified as a Title I information service. Legally, an
“offering of a capability for generating, acquiring, storing, transforming,
processing, retrieving, utilizing, or making available information via
telecommunications, [including] electronic publishing, but [not including] any
use of any such capability for the management, control, or operation of a
telecommunications system or the management of a telecommunications service.”
The FCC can regulate Title I service “reasonably ancillary to the effective
performance” of its responsibilities. That sounds like a wide berth, but it’s
just the opposite. It places the burden of proof on the commission, which
recently failed to convince a federal court of its authority to tell Comcast to
Title I doesn’t cover the wires. Title II does. By legal definition, it’s “a means
the offering of telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the public,
regardless of the facilities used.” Title II rules now apply to “common
carriers,” which are, for the most part, phone companies. Under Title II, the
FCC can compel common carriers to provide service free of “unjust or unreasonable discrimination in
charges, practices, classifications, regulations, facilities, or
The carrier has a little more to prove in this case. The FCC is proposing to
leave the Internet “generally unregulated under Title I,” and “identify the
Internet connectivity service that is offered as part of wired broadband
Internet service as a telecommunications service.”
This seems to keep the government out of the content business, where no one
wants it; and dealing strictly with infrastructural procedures. Prima facie, a
seemingly logical compromise. Except for what Comcast did--and what’s driving
the FCC’s intention to reclassify broadband--was all about content. It was
about peer-to-peer traffic, something germinal in 2002 when broadband was
deemed a Title I service. Two years later, it was kudzu-like, the largest
contributor of Internet traffic. Certainly peer-to-peer is a method of file
exchange and arguably content neutral, yet certain types of content are
generally associated with the method--video and audio, particularly.
Additionally, broadband networks aren’t comparable to common carrier networks
in that the traffic will continue to increase. Common carriers trade in voice.
Broadband network providers deal with an exploding range of services
encompassing voice, video, audio, remote control, 3D, virtual animatronics,
commerce, gaming, warfare, and a million things we haven’t yet thought of.
Those million things will be entirely dependent on companies willing to
continually upgrade their networks. It’s unlikely for that to happen
Reclassifying broadband could easily be counterproductive to the fed’s goal of
creating nationwide connectivity, unless it’s to be entirely taxpayer funded.
Let’s see how that goes over. Only one thing is certain if the FCC elects to
reclassify broadband service. It will wind up back in court.