FCC Notice of Inquiry on Broadband Reclassification
Let the games begin and ex parte filings flow! The FCC formally opened its proceedings yesterday on the classification of broadband Internet. The agency released a 64 page, footnote-chocked Notice of Inquiry, Framework for Broadband Internet Service, to set this round in motion.
The document nicely explains the recent history that led to the agency’s third-way approach and the policy considerations at stake (universal service, privacy, public safety). I reviewed parts of this thing, especially the section covering recent legal history, and it all stands as a sobering reminder of how the FCC (under Chairman Powell) went completely off-course in 2002.
In the FCC’s 2002 Declaratory Ruling that cable modem was an information service, it called broadband cable a “single, integrated service that enables the subscriber to utilize Internet access service,” and that telecommunications component (the transmission part) was “not . . . separable from the data processing capabilities of the service.”
Even in 2002 that clearly wasn’t the case. At the time, I (along with lots of others) was using email services and web applications not directly tied to my ISP and viewed a cable modem as purely a connection to non-ISP riches on the Web. Some at the FCC never quite grasped the Internet: they wanted it to be the old phone system with a few more applications.
It’s nice to see that under more enlightened rule the FCC has discovered (paragraph 56 of the NOI) “some users now rely on free e-mail services provided by companies such as Yahoo and Microsoft.” Yup, just a few, and I guess Google gmail is chopped liver?
I’ve embedded the complete report below. Some highlights:
The background section, starting on page 5, take you on a fun filled tour through the relevant court cases, culminating in Brand X.
And on page 9, they’ve excerpted from Scalia’s memorable Brand X dissent, wherein he scolds the FCC for its wacky understanding of the Communications Act, and reminds them to use a bit of common sense: ” the telecommunications component of cable- modem service retains such ample independent identity that it must be regarded as being on offer— especially when seen from the perspective of the consumer or end user.”
And now, for your reading pleasure:
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