Skype and colleagues to FCC: Declare yourself fit to regulate the net

Last week's staggering defeat to Comcast in a landmark DC Circuit Court decision left the US Federal Communications Commission stripped of any "ancillary authority" it thought it had to regulate the practices of Internet service providers. As of now, it isn't exactly clear just which government agency does have that authority.

Rather than wait for Congress to make a decision on the matter -- an event which may, arguably, never happen at all -- a coalition of major Internet stakeholders, including Skype, Google, eBay, Amazon, Netflix, TiVo, and Facebook are calling on the FCC to take action. Quite literally, they want the Commission to convene a hearing declaring its intention to fill the gap left by the court's removal of FCC authority...with FCC authority.

In other words, the FCC may not be the best-suited to regulate the Internet under current US law...but no other candidates exist.

"We think that time is of the essence here," stated Markham Erickson, Executive Director of the Open Internet Coalition, in a press conference Tuesday morning. "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."

What Erickson is asking for is a complete U-turn -- for the FCC to effectively declare Internet communications the same, from a legal standpoint, as telephone communications. The FCC steered clear of that interpretation in 2002 when, under the leadership of then-Chairman Michael Powell, it declared the type of service delivered to customers via cable modem as an information service, distinct and different from a telecommunications service.

As the 2002 declaration reads (PDF available here), "In this proceeding, as well as in a related proceeding concerning broadband access to the Internet over domestic wireline facilities, we seek to create a rational framework for the regulation of competing services that are provided via different technologies and network architectures. We recognize that residential high-speed access to the Internet is evolving over multiple electronic platforms, including wireline, cable, terrestrial wireless and satellite. By promoting development and deployment of multiple platforms, we promote competition in the provision of broadband capabilities, ensuring that public demands and needs can be met. We strive to develop an analytical approach that is, to the extent possible, consistent across multiple platforms. For the reasons discussed...we conclude that cable modem service, as it is currently offered, is properly classified as an interstate information service, not as a cable service, and that there is no separate offering of telecommunications service."

That declaration effectively freed the FCC from having to resolve the issue of how, or whether, broadband carriers must be forced 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 AT&T to offer Internet service from a menu of competitors. One of those competitors would have been a small firm called Brand X, whose name will forever grace the history books as the subject of the Supreme Court's 2005 "Brand X Decision." Overturning the appeals court, the nation's highest court sided in favor of the FCC, in a decision authored by Justice Clarence Thomas and dissented solely by Justice Antonin Scalia.

Scalia's dissent was classic Scalia, complete with frequent alliteration, fluent vocabulary, and a pizza analogy. The point the justice made was that, from a consumer's perspective, whether he receives service from a service provider or from a carrier, he receives service. The difference would be about as trivial as whether a pizza restaurant delivers food to customers' doors, or hires a cab driver to do it instead.

Since the delivery service provided by cable (the broad-band connection between the customer's computer and the cable company's computer-processing facilities) is downstream from the computer-processing facilities, there is no question that it merely serves as a conduit for the information services that have already been "assembled" by the cable company in its capacity as ISP. This is relevant because of the statutory distinction between an "information service" and "telecommunications." The former involves the capability of getting, processing, and manipulating information...The latter, by contrast, involves no "change in the form or content of the information as sent and received." ...When cable-company-assembled information enters the cable for delivery to the subscriber, the information service is already complete. The information has been (as the statute requires) generated, acquired, stored, transformed, processed, retrieved, utilized, or made available. All that remains is for the information in its final, unaltered form, to be delivered (via telecommunications) to the subscriber.

This reveals the insubstantiality of the fear invoked by both the Commission and the Court: the fear of what will happen to ISPs that do not provide the physical pathway to Internet access, yet still use telecommunications to acquire the pieces necessary to assemble the information that they pass back to their customers. According to this reduction...if cable-modem-service providers are deemed to provide "telecommunications service," then so must all ISPs because they all "use" telecommunications in providing Internet functionality (by connecting to other parts of the Internet, including Internet backbone providers, for example). In terms of the pizzeria analogy, this is equivalent to saying that, if the pizzeria "offers" delivery, all restaurants "offer" delivery, because the ingredients of the food they serve their customers have come from other places; no matter how their customers get the food (whether by eating it at the restaurant, or by coming to pick it up themselves), they still consume a product for which delivery was a necessary "input." This is nonsense. Concluding that delivery of the finished pizza constitutes an "offer" of delivery does not require the conclusion that the serving of prepared food includes an "offer" of delivery. And that analogy does not even do the point justice, since " 'telecommunications service' " is defined as "the offering of telecommunications for a fee directly to the public."...The ISPs' use of telecommunications in their processing of information is not offered directly to the public.

What Erickson and his Coalition are requesting is for the FCC under Chairman Julius Genachowski to declare Internet service a "Title II" service under the existing Telecommunications Act, and effectively concede Justice Scalia was correct after all -- a step which he says actually would not be unprecedented.

Next: The FCC's "spare tire"...

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