Lane v. Cotton

“… the Internet is in some ways more like the road system than telephone or cable. These are essentially single purpose networks, each built for a particular application. … Manufacturers are free to invent and sell vehicles suitable for use on the road system. Builders are free to construct buildings, homes, offices, manufacturing plants that use the road system. But the road system itself is not owned by the private sector and its use is essentially open to all. The question is whether incentives can be found that would produce a similar effect for broadband Internet provision… ” Jim Harper, Cerf: Nationalize the Internet?, Technology Liberation Front (June 28, 2008) (http://techliberation.com/2008/06/27/cerf-nationalize-the-internet)

Those in favor of nationalizing the internet argue that nationalization will provide open, end to end architecture, where no particular party controls access, and increased internet access is generally available. Matthew Dunne. Let My People Go (Online): The Power of the FCC to Preempt State Laws That Prohibit Municipal Broadband, 107 Colum. L. Rev. 1126 at 1127.

Currently, under the 1996 Telecommunications Act, the FCC distinguishes between two relevant categories of entities. Those providing: (1) telecommunication services: “offering ... telecommunications for a fee directly to the public ... regardless of the facilities used,” 47 U.S.C. § 153(46) which are subject to mandatory regulation under Title II of the Communications Act of 1934 as common carriers and (2) information services: “offering ... a capability for [processing] information via telecommunications,” 47 U.S.C. § 153(20) which are almost completely outside the scope of the Act. Importantly, the FCC has classified both cable broadband and phone company DSL services as “information services”, because companies offering such services merely use telecommunications to provide end users with information services. (Broadband: National Cable & Telecommunications Ass'n v. Brand X Internet Services, 45 U.S. 967, 968 (U.S.,2005) (upholding FCC declaratory ruling: In re Inquiry Concerning High-Speed Access to Internet Over Cable and Other Facilities, 17 F.C.C.R. 4798, GN Docket No. 00-185 March 15, 2002; DSL: In the Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, CC Docket No. 02-52, 02-33, 01-337, 95-20, 98-10, Report and Order and Notice of Proposed Rulemaking, FCC 05-150, released Sept. 23, 2005, para. 5) As information services, broadband and DSL operators are not subject to common carrier regulations and can thus act as gatekeepers, denying consumers access to certain services and steering them towards their preferred applications. Had they been subject to Title II regulations, as common carriers, they would have been prohibited from making any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services… 47 U.S.C. § 201.

Although the FCC has ruled that broadband and DSL service providers are exempt from Title II regulations, the FCC has indicated a willingness to consider “adopting any non-economic regulatory obligations that are necessary to ensure consumer protection and network security and reliability” under its Title I authority. In the Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, CC Docket No. 02-52, 02-33, 01-337, 95-20, 98-10, Report and Order and Notice of Proposed Rulemaking, FCC 05-150, released Sept. 23, 2005, para. 111. The FCC has also issued the following policy statement, aimed at preserving and promoting the vibrant and open character of the Internet. Policy Statement: In The Matters Of Appropriate Framework For Broadband Access To The Internet Over Wireline Facilities, 20 F.C.C.R. 14986 CC Docket No. 02-33 September 23, 2005. This statement highlighted the following four principles which the FCC will incorporate into its ongoing policymaking decisions:

- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.

- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.

- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network

- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers

Policy Statement: In The Matters Of Appropriate Framework For Broadband Access To The Internet Over Wireline Facilities, 20 F.C.C.R. 14986 CC Docket No. 02-33 September 23, 2005.

Thus, in conclusion, at present the liability of a cable broadband or DSL provider under federal regulations is relatively limited and in no way approaches that imposed on a common carrier under Title II of the 1934 Communications Act.

-- JaneS - 22 Dec 2008

• FCC_declaratory_ruling_on_Broadband_Cable.pdf: FCC Declaratory Ruling on Broadband Cable

• FCC_declaratory_ruling_on_DSL.pdf: FCC Declaratory Ruling on DSL

• National_Cable_v._Brand_X.pdf: National Cable v. Brand X

• Policy_Statement_regarding_Broadband_access.pdf: Policy Statement Re Broadband Access