Revisiting the Regulatory Status of Broadband Internet Access: A Policy Framework for Net Neutrality and an Open Competitive Internet

Article excerpt

 I.  INTRODUCTION
II.  NEITHER FACT, POLICY, NOR PRECEDENT SUPPORT THE
     CLASSIFICATION OF BROADBAND INTERNET ACCESS AS
     ANYTHING BUT A BASIC TELECOMMUNICATIONS SERVICE
     A. The Slippery Slope
     B. Longstanding Policies Requiring the Separation of
        Common Carrier Telecommunications from
        Information Services Should Apply Equally to Next
        Generation Technology
     C. Is Today's Broadband Internet Access an Information
       Service or Simply Basic Transmission?
III. TECHNOLOGY-BASED CLAIMS THAT BROADBAND
     INTERNET ACCESS IS AN INFORMATION SERVICE
     A. "Bundled" Information Services
     B. Domain Name Services
     C. Technology Transitions Are an Ongoing Part of
        Telecommunications Industry Progress                     1
     D. Neither Its Eventual Destination (on the Public
        Internet) nor Its Bandwidth (Speed) Set Broadband
        Internet Access Apart from Other Last-Mile
        Telecommunications Services
     E. Regulating the Underlying Transmission in Internet
        Access Services is Not, and Would Not Amount to or
        Result in, the Regulation of Content or Application
        Providers
 IV. ECONOMIC REALITIES REQUIRE REGULATORY SUPPORT
     FOR NONDISCRIMINATORY ACCESS BY COMPETITORS TO
     BROADBAND TRANSMISSION USED FOR INTERNET ACCESS. ]
     A. Regardless of the Technology in the Upstream Network,
        Access Facilities Remain a Bottleneck
     B. Reevaluation of FCC Competition Analysis Needs to
        Extend to Broadband Access
     C. Reconciling Recent FCC Decisions with Existing
        Policies on Broadband Internet Access
  V. CONCLUSION: NET NEUTRALITY CAN BEST BE ACHIEVED
     BY THE FULL RESTORATION OF NONDISCRIMINATORY
     ACCESS TO BROADBAND LAST-MILE FACILITIES

I. INTRODUCTION

When the United States Court of Appeals for the District of Columbia Circuit recently shut down the FCC's attempt to impose "net neutrality" principles on the Internet access provider Comcast, (1) the FCC was forced to confront the fact that a decade's worth of steps on the slippery slope of broadband access deregulation had led the FCC to an unforeseen and ultimately untenable destination, where it was unable to enforce the fundamental principles of common carrier regulation necessary to ensure that all Internet content and application providers--including those not affiliated with the owners of Internet access facilities--were ensured reasonable and nondiscriminatory use of those facilities. The FCC had arrived at its current dilemma through an unfortunate combination of (1) unverified predictive judgments associating deregulation with investment; (2) fanciful notions about a gold rush of competitive entry into the consumer broadband market; (3) the abandonment of the decades-old "bright line" between common carrier transmission functions and competitive services that any provider could furnish using that basic transmission (i.e., telecommunications); and (4) the elimination of unbundling requirements for services over broadband facilities. The FCC needs now to revisit--and revise--the factual, legal, and policy judgments that have brought it to the current situation. The Chairman of the FCC has proposed that the regulatory oversight the FCC considers necessary for net neutrality can be restored by reclassifying Interact access as "telecommunications services," (2) but under his proposed "Third Way," the FCC would apply and enforce "only a handful of provisions of Title II...." (3)

This Article explains why dedicated Internet access is a telecommunications service and, as such, why reclassification to Title II must be pursued to correct its earlier--and incorrect--treatment as an "information service." More importantly, it explains why reclassification alone will not be sufficient to assure a competitive and open Internet, and why an approach that restores competitor access to common carrier broadband facilities for purposes of offering Internet access to their own retail customers remains the best strategy for achieving this goal. …