FCC Wireless Broadband Decision Re-opens Net Neutrality Debate

The day after the US Federal Communications Commission announced it would open an "inquiry" (as opposed to an "investigation") into concerns that certain major industry players may be able to attain preferential access to network bandwidth, it declared wireless broadband service an "information service."

On the surface, that may seem like a non-event; but as FCC Commissioner Michael J. Copps warned in his concurrence with the decision last Thursday, declaring something an "information service" as opposed to a "telecommunications service" (like telephony) puts it in a very different regulatory bracket.

"In 2005, the Commission decided to reclassify broadband transmission facilities as Title I 'information services' rather than Title II 'telecommunications services,"' Copps wrote. "To the uninitiated this sounds like semantics. But it had real consequences. That's because the nondiscrimination obligations that attach to telecommunications traffic and which were vital to keeping the Internet open in the dial-up era no longer apply to broadband services."

Last Friday, the FCC ruled that wireless broadband falls under Title I as well. While a telecommunications service may be responsible for the delivery of wireless broadband (and in the US, there are few cases where that's false), the FCC decided that doesn't make wireless broadband into a telecommunications service as a whole.

The reason that's important is because of existing regulatory policy. Information services, by definition, have a minimum of government oversight. While supporters of both private enterprise and free enterprise have come out in favor of minimal oversight, net neutrality proponents are mindful of the fact that this gives smaller ISPs fewer options if they believe a larger competitor is being given preferential treatment by bigger telecom services that lease their bandwidth.

"In making these determinations, we provide regulatory certainty regarding the classification of wireless broadband Internet access service," states Friday's FCC's ruling. "It establishes a minimal regulatory environment for wireless broadband Internet access service that promotes our goal of ubiquitous availability of broadband to all Americans [and] also furthers our efforts to establish a consistent regulatory framework across broadband platforms by regulating like services in similar manner."

But it may also mean that the inquiry launched on Thursday may have just had its teeth blunted, in a sense, in that it may no longer be in the FCC's purview to help companies seek solutions if they feel they're being marginalized by top-tier telecom players. Enabling them to be regulated as telecom companies up until the point where they provide ISP service, could arguably give major players such as Verizon and Comcast a free pass.

In announcing the opening of the inquiry last Thursday, FCC Chairman Kevin Martin stated, "We seek comment on how broadband providers are managing their Internet traffic, whether certain traffic is prioritized, and whether our policies should distinguish between content providers that charge end users for access to content and those that do not." In case the Commission spots a problem, Martin said, it stands ready to "step in if necessary."

Martin does not go on to say what "step in" means, which is among the factors that have prompted Democrats on the Commission to start asking skeptical questions.

"The goal of this Declaratory Ruling is ostensibly to promote wireless broadband deployment," Commissioner Jonathan Adelstein wrote on Friday. "It is hard to fathom how it is likely to make much difference in the near term considering that no party bothered to ask us to formally consider it. It is hard to see how clarifying the regulatory classification will promote deployment when nobody was saying it was ever an impediment."

Meanwhile, Martin's fellow Republicans are taking the opportunity - while Congressional legislation remains stalled - to reframe the entire debate, perhaps redefining "net neutrality" in the process to mean "deregulation." As Commissioner Deborah Tate wrote on Friday, declaring wireless broadband under Title I was accomplished, in her opinion, "in a technology-neutral manner that provides wireless broadband Internet access services a level playing field with other Internet access services."

With a federal auction of much of the existing VHF and UHF television bands to begin next month, major telecom services are considering their options with regard to how best to lay claim to some of the most prized frequencies.

As mere mobile telecom service providers, they may be limited in how much spectrum each can obtain through auction. But if even part of that spectrum is to be deployed for wireless broadband service, the rules could be dramatically different, with one or two key players hauling off the lion's share. The FCC may begin debating rules for this auction as soon as next month.