Legal & Regulatory Classification of Broadband Demystifying Title II

Overview Two lines of FCC decisions and the resulting federal court cases  classification of computer services  ancillary authority Two categories of federal statutes  statutory definitions for the FCC  congressional mandates to the FCC What does it mean for broadband?  re-shaping universal service funds for today’s technologies  implementation of other national broadband plan policies

What does the FCC regulate? “interstate and foreign commerce in communication by wire and radio….” 47 U.S.C. § 151 FCC typically oversees transmission of communications – transport of voice, video, or data – via wired and wireless It typically does not regulate the content of those communications  The classification issue and “net neutrality” debates do not change that fundamental precept

Prior FCC Classification Decisions FCC Computer Inquiries: mid 1960s - mid 1990s  For further reading on the Computer inquiries…. For further reading Congress adopts in 1996 Telecommunications Act the basic framework of Computer decisions “Modern” FCC decisions  Cable Modem (2002)  DSL (2005)  Wireless Broadband (2007) U.S. Supreme Court decision in Brand X (2005)  Affirmed FCC discretion to make this decision

1996 Telecommunications Act Common Carrier background Definitions in the 1996 Act [47 U.S.C. § 153]  “telecommunications” means the transmission…of information of the user’s choosing  “telecom. service” means the offering of telecommunications for a fee directly to the public...regardless of the facilities used  “information service” means…generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications…but does not include any use of any such capability for the management, control, or operation of a telecommunications system or…service

In plainer language…. A Title II service is a telecommunications service: one that transmits information of the user’s choosing vs. Information services – such as , web browsing, DNS lookup – use transmission and transport capacity to get to your computer, but involve something more

Title I and Ancillary Authority There is no such thing as a Title I service; there merely are communications and information services that do not fit within these other Titles and definitions Ancillary authority doctrine began with cable television, before Congress passed laws dealing directly with Cable

Flash Forward to 2010 Comcast/BitTorrent Blocking 2008 FCC order prohibits blocking, relying on open Internet “principles” 2010 Federal Appeals Court Decision in Comcast v. FCC  Court decides FCC did not demonstrate ancillary authority over broadband Internet access in that 2008 FCC order

FCC Response Chairman Genachowski’s “Third Way”Third Way FCC General Counsel Austin Schlick provides even more detail on the approach more detail Classification as Title II necessary for FCC to have jurisdiction to:  promote broadband deployment & adoption  protect consumers online  truth-in-billing / transparency / privacy / disabilities  preserve the open Internet

National Broadband Plan Purposes Propose to apply some provisions from Title II of the Communications Act to broadband Internet access 201, 202, and 208 – reasonable rates and terms 222 – privacy of customer information 254 – universal service 255 – access by persons with disabilities Without classification of broadband as Title II, USF for broadband is far more difficult 47 U.S.C. § 254(c)(1): “Universal service is an evolving level of telecommunications services…” 47 U.S.C. § 254(e): “only an eligible telecommunications carrier…shall be eligible to receive…universal service….”

For more information: Matt Wood Associate Director