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Cable Technology Feature Article

April 14, 2010

Coalition Urges FCC to Reclassify Broadband

By Alice Straight, TMCnet Web Editor

Coalition Urges FCC to Reclassify Broadband

Net Neutrality advocates signaled their support for the FCC to reclassify broadband to bring it under FCC regulatory control.

The Open Internet Coalition, which represents a group of major Internet stakeholders including Skype, Google, eBay, Amazon, Netflix, TiVo and Facebook (News - Alert), held a press conference on Tuesday asking the FCC to reclassify broadband as a telecommunications service. The FCC currently classifies the Internet as an information service.

The press conference was held in the wake of last week's Washington, D.C. Circuit Court decision in favor of Comcast which said the FCC did not have the authority under Title 1 of the Telecommunications Act to regulate the practices of Internet services providers.

'We think that time is of the essence here,' stated Markham Erickson, executive director of the Open Internet Coalition. 'While we're not opposed to Congress getting involved in trying to address what happened with the Comcast decision, at the same time, the FCC needs to move quickly to open a proceeding to classify high-speed Internet access services as telecommunications services. In fact, that's been the norm at the FCC for most of the history of essential communications platforms -- that they're treated as telecommunications services. If the FCC were to do that, it would be a fairly straightforward process of reversing the 2002 [Brand X] cable modem order, and it would re-establish the FCC's legal authority, allowing it to move forward on the Broadband Plan, and the network neutrality rulemaking.'

In the 2002 order the FCC declined to force broadband carriers to open their services up to multiple Internet access providers. The same laws that forced the Bell System to open up its long distance lines to MCI, may have applied in compelling cable companies to offer Internet service from a menu of competitors. One of those competitors would have been a small firm called Brand X. In 2005 the Supreme Court ruled in favor of the FCC, in a decision authored by Justice Clarence Thomas with Justice Antonin Scalia as the sole dissenter.

Scalia's dissent was based on the fact that, from a consumer's perspective, whether he receives service from a service provider or from a carrier, he receives service.

Scalia argued that the delivery service provided the cable company was merely the conduit for the information services already assembled by Brand X in its capacity as ISP. That issue is at the heart of the difference in definition between an information service and telecommunications.

In the 2005 ruling Scalia argued that Brand X was responsible for getting, processing, and manipulating information and that the information service was completed by Brand X. All that the cable company needed to do was deliver the information to the subscriber.

The Open Internet Coalition is asking the FCC to say the Scalia was correct in his dissent and for the Commission and Chairman Julius Genachowski (News - Alert) to declare Internet service a 'Title II' service under the Telecommunications Act.

'I actually think that the Comcast decision, in many ways, was a blessing,' Erickson said, 'in that it's really saying that the Commission needs to jettison the amorphous concept of ancillary authority, because it's not clear exactly how far that extends into the Internet. If it refocuses on just the last-mile facilities of the Internet access provider, they would be on solid legal foundation. It's also something that the Supreme Court mentioned in the Brand X Decision, that the FCC could of course revisit its decision and reverse its decision, and if they did so, they would be on solid legal foundation. It was Justice Scalia who dissented from affirming the FCC's ruling in the cable modem order, saying quite clearly, the facilities [of] the Internet access provider are separate offerings that are telecommunications services, not information services.'

It's a move that the Washington, D.C. Circuit Court suggested in its ruling.

'The key is enforceability,' said Christopher Libertelli (News - Alert), Skype's senior director of government and regulatory affairs at the press conference. 'My job is to protect the Skype community. If you're a Skype (News - Alert) user, my job is to bring your concerns to the regulator should the carriers' worst behavior block or degrade your conversation. So at some level, this whole Title I/Title II debate is about, where do consumers go? Title II is a mechanism that would provide consumers with a place to go to the FCC, to bring to regulators' attention conduct that harms consumers. If this notion of a voluntary process lacks that essential enforceability feature, I think it's going to fall short of establishing a real government policy in this area.'

Telephone and cable companies voiced their opposition to the reclassification in a letter to the FCC prior to the Circuit Court decision. AT&T (News - Alert) Inc., Verizon Communications Inc. and Time Warner Cable Inc. are signatories on a letter that in part warns of legal action by the companies if the FCC attempts to reclassify the services. Such a reclassification would have "far-reaching and destructive consequences" including "years of "investment-deterring uncertainty and litigation," the February letter says.