[Federal Register Volume 75, Number 121 (Thursday, June 24, 2010)]
[Notices]
[Pages 36071-36088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15349]
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FEDERAL COMMUNICATIONS COMMISSION
[GN Docket No. 10-127; FCC 10-114]
Framework for Broadband Internet Service
AGENCY: Federal Communications Commission.
ACTION: Notice.
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SUMMARY: This document begins an open, public process to consider the
adequacy of the current legal framework within which the Commission
promotes investment and innovation in, and protects consumers of,
broadband Internet service. Recent developments--including a decision
of the United States Court of Appeals for the District of Columbia
Circuit and affirmation from Congress that the Commission plays a vital
role with respect to broadband--lead the Commission to seek comment on
our legal framework for broadband Internet service.
DATES: Comments must be submitted by July 15, 2010, and reply comments
must be submitted by August 12, 2010.
ADDRESSES: You may submit comments, identified by GN Docket No. 10-127,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Chris Killion or David Tannenbaum,
Office of General Counsel, 202-418-1700.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Inquiry (Notice), FCC 10-114, adopted on June 17, 2010, and released
on June 17, 2010. Interested parties may file comments on or before
July 15, 2010, and reply comments on or before August 12, 2010.
Comments and reply comments may be filed: (1) Using the Commission's
Electronic Comment Filing System (ECFS), (2) using the Federal
Government's eRulemaking Portal, or (3) by filing paper copies. See
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121,
May 1, 1998. All filings related to this Notice should refer to GN
Docket No. 10-127. Further, we strongly encourage parties to develop
responses to this Notice that adhere to the organization and structure
of this Notice.
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours
are 8 a.m. to 7 p.m. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes must be disposed of before
entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
Parties shall also serve one copy with the Commission's copy
contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th
Street, SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, or via
e-mail to [email protected].
The inquiry this Notice initiates shall be treated as a ``permit-
but-disclose'' proceeding in accordance with the Commission's ex parte
rules. Persons making oral ex parte presentations are reminded that
memoranda summarizing the presentations must contain summaries of the
substance of the presentations and not merely a listing of the subjects
discussed. More than a one or two sentence description of the views and
arguments presented generally is required. Other requirements
pertaining to oral and written presentations are set forth in section
1.1206(b) of the Commission's rules. Ex parte comments may be filed at
any time except during the Sunshine Period. Ex parte comments may be
filed: (1) Using the Commission's Electronic Comment Filing System
(ECFS), (2) using the Federal Government's eRulemaking Portal, (3) by
filing paper copies, or (4) by posting comments and ideas on the
Broadband.gov blog at http://blog.broadband.gov/?categoryId=494971 or
on http://broadband.ideascale.com/a/ideafactory.do?discussionID=11271.
In addition to the usual methods for filing ex parte comments, the
Commission is allowing ex parte comments in this proceeding to be filed
by posting comments on http://blog.broadband.gov/?categoryId=494971 and
on http://broadband.ideascale.com/a/ideafactory.do?discussionID=11271.
Accordingly, persons wishing to examine the record in this proceeding
should examine the record on ECFS, http://blog.broadband.gov/?categoryId=494971 and http://broadband.ideascale.com/a/ideafactory.do?discussionID=11271. Although those posting comments on
the blog may choose to provide identifying information or may comment
anonymously, anonymous comments will not be part of the record in this
proceeding and accordingly will not be relied on by the Commission in
reaching its conclusions in this rulemaking. The Commission will not
rely on anonymous postings in reaching conclusions in this matter
because of
[[Page 36072]]
the difficulty in verifying the accuracy of information in anonymous
postings. Should posters provide identifying information, they should
be aware that although such information will not be posted on the blog,
it will be publicly available for inspection upon request.
Documents in GN Docket No. 10-127 will be available for public
inspection and copying during business hours at the FCC Reference
Information Center, Portals II, 445 12th Street, SW., Room CY-A257,
Washington, DC 20554. The documents may also be purchased from BCPI,
telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562,
e-mail [email protected].
People with Disabilities: To request materials in accessible
formats for people with disabilities (Braille, large print, electronic
files, audio format), send an e-mail to [email protected] or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
1. This Notice begins an open, public process to consider the
adequacy of the current legal framework within which the Commission
promotes investment and innovation in, and protects consumers of,
broadband Internet service. In this Notice we use the term ``broadband
Internet service'' to refer to the bundle of services that facilities-
based providers sell to end users in the retail market. This bundle
allows end users to connect to the Internet, and often includes other
services such as e-mail and online storage. In prior orders we have
referred to this bundle as ``broadband Internet access service.'' We
use the term ``wired,'' as in ``wired broadband Internet service,'' to
distinguish platforms such as digital subscriber line (DSL), fiber,
cable modem, and broadband over power lines (BPL), from platforms that
rely on wireless connections to provide Internet connectivity and other
services in the last mile. We refer to the service that may constitute
a telecommunications service as ``Internet connectivity service'' or
``broadband Internet connectivity service.'' As discussed below,
Internet connectivity service allows users to communicate with others
who have Internet connections, send and receive content, and run
applications online. For administrative simplicity we incorporate the
same distinction between broadband and narrowband that the Commission
applied in the classification orders we revisit here. That is, services
with over 200 kbps capability in at least one direction will be
considered ``broadband'' for the particular purposes of these Notices.
Until a recent decision of the United States Court of Appeals for the
District of Columbia Circuit, there was a settled approach to
facilities-based broadband Internet service, which combined minimal
regulation with meaningful Commission oversight. The Comcast opinion,
however, held that the Commission went too far when it relied on its
``ancillary authority'' to enjoin a cable operator from secretly
degrading its customers' lawful Internet traffic. Comcast appears to
undermine prior understandings about the Commission's ability under the
current framework to provide consumers basic protections when they use
today's broadband Internet services. Moreover, the current legal
classification of broadband Internet service is based on a record that
was gathered a decade ago. Congress, meanwhile, has reaffirmed the
Commission's vital role with respect to broadband, and the Commission
has developed a National Broadband Plan recommending specific agency
actions to encourage deployment and adoption. The Plan contains dozens
of recommendations to fulfill the congressional aims articulated in the
Recovery Act, including specific proposals to increase access and
affordability; maximize utilization of broadband Internet services; and
enhance public safety, consumer welfare and education throughout the
United States. Roughly half of the Plan's recommendations are directed
to the Commission itself.
2. These developments lead us to seek comment on our legal
framework for broadband Internet service. In addition to seeking
original suggestions from commenters, we ask questions about three
specific approaches. First addressing the wired service offered by
telephone and cable companies and other providers, we seek comment on
whether our ``information service'' classification of broadband
Internet service remains adequate to support effective performance of
the Commission's responsibilities. We then ask for comment on the legal
and practical consequences of classifying Internet connectivity service
as a ``telecommunications service'' to which all the requirements of
Title II of the Communications Act would apply. Finally, we identify
and invite comment on a third way under which the Commission would: (i)
Reaffirm that Internet information services should remain generally
unregulated; (ii) identify the Internet connectivity service that is
offered as part of wired broadband Internet service (and only this
connectivity service) as a telecommunications service; and (iii)
forbear under section 10 of the Communications Act from applying all
provisions of Title II other than the small number that are needed to
implement the fundamental universal service, competition and small
business opportunity, and consumer protection policies that have
received broad support. We seek comment on the same issues as they
relate to terrestrial wireless and satellite broadband Internet
services, as well as on other factual and legal issues specific to
these wireless services that bear on their appropriate classification.
We further seek comment on discrete issues, including the states'
proper role with respect to broadband Internet service.
Introduction
3. This Commission exists ``[f]or the purpose of regulating
interstate and foreign commerce in communication by wire and radio so
as to make available, so far as possible, to all people of the United
States * * * a rapid, efficient, Nation-wide, and world-wide wire and
radio communication service with adequate facilities at reasonable
charges, for the purpose of the national defense, [and] for the purpose
of promoting safety of life and property through the use of wire and
radio communications.'' During more than 75 years of technological
progress--from the time of tube radios and telephone switchboards to
the modern era of converged digital services--the Commission has
promoted innovation and investment in new communications services and
protected and empowered the businesses and consumers who depend on
them.
4. We have held to our pro-competition and pro-consumer mission in
the Internet Age. Indeed, for at least the last decade the Commission
has taken a consistent approach to Internet services--one that industry
has endorsed and Congress and the United States Supreme Court have
approved. This approach consists of three elements: The Commission
generally does not regulate Internet content and applications; access
to an Internet service provider via a dial-up connection is subject to
the regulatory rules for telephone service; and for the broadband
Internet services that most consumers now use to reach the Internet,
the Commission has refrained from regulation when possible, but has the
authority to step in when necessary to protect consumers and fair
competition.
5. The first element of our consistent approach, preserving the
Internet's capacity to enable a free and open forum for innovation,
speech, education, and job creation, finds expression in (among other
provisions) section 230 of the
[[Page 36073]]
Communications Act, which states Congress's conclusion that ``[t]he
Internet and other interactive computer services have flourished, to
the benefit of all Americans, with a minimum of government
regulation.''
6. The second element, oversight of dial-up access to the Internet
under the common carriage framework of Title II of the Communications
Act, is a facet of traditional telephone regulation. Although Internet
users increasingly depend on broadband communications connections for
Internet access, approximately 5.6 million American households still
use a dial-up telephone connection.
7. The third element of the framework, restrained oversight of
broadband Internet service, was expressed clearly on September 23,
2005, for example, when the Commission released two companion
decisions. The first ``establishe[d] a minimal regulatory environment
for wireline broadband Internet access services.'' It reclassified
telephone companies' broadband Internet service offerings as
indivisible ``information services'' subject only to potential
regulation under Title I of the Communications Act and the doctrine of
ancillary authority. In that decision, the Commission articulated its
belief that ``the predicates for ancillary jurisdiction are likely
satisfied for any consumer protection, network reliability, or national
security obligation that we may subsequently decide to impose on
wireline broadband Internet access service providers.'' The second
decision that day adopted principles for an open Internet, again
expressing confidence that the Commission had the ``jurisdiction
necessary to ensure that providers of telecommunications for Internet
access * * * are operated in a neutral manner.'' Earlier this year, the
Commission unanimously reaffirmed in a Joint Statement on Broadband
that ``[e]very American should have a meaningful opportunity to benefit
from the broadband communications era,'' and that ``[w]orking to make
sure that America has world-leading high-speed broadband networks--both
wired and wireless--lies at the very core of the FCC's mission in the
21st Century.'' Together, these and other agency decisions show the
Commission's commitment to restrained oversight of broadband Internet
service, and its equally strong resolve to ensure universal service and
protect consumers and fair competition in this area when necessary.
8. Before the Comcast case, most stakeholders--including major
communications service providers--shared the Commission's view that the
information service classification allowed the Commission to exercise
jurisdiction over broadband Internet services when required. But the
D.C. Circuit concluded that the Commission lacked authority to prohibit
practices of a major cable modem Internet service provider that
involved secret interruption of lawful Internet transmissions, which
the Commission found were unjustified and discriminatory and denied
users the ability to access the Internet content and applications of
their choice. Today, in the wake of the Comcast decision, the
Commission faces serious questions about the legal framework that will
best enable it to carry out, with respect to broadband Internet
service, the purposes for which Congress established the agency.
Meanwhile, Congress has highlighted the importance of broadband
networks and Internet-based content and services for economic growth
and development and has directed the Commission to develop policies to
address concerns about the pace of deployment, adoption, and
utilization of broadband Internet services in the United States.
9. Comcast makes unavoidable the question whether the Commission's
current legal approach is adequate to implement Congress's directives.
In this Notice, we seek comment on the best way for the Commission to
fulfill its statutory mission with respect to broadband Internet
service in light of the legal and factual circumstances that exist
today. We do so while standing ready to serve as a resource to Congress
as it considers additional legislation in this area. Commenters may
wish to address how the Commission should proceed on these issues in
light of Congressional developments.
10. We emphasize that the purpose of this proceeding is to ensure
that the Commission can act within the scope of its delegated authority
to implement Congress's directives with regard to the broadband
communications networks used for Internet access. These networks are
within the Commission's subject-matter jurisdiction over communication
by wire and radio and historically have been supervised by the
Commission. We do not suggest regulating Internet applications, much
less the content of Internet communications. We also will not address
in this proceeding other Internet facilities or services that currently
are lightly regulated or unregulated, such as the Internet backbone,
content delivery networks (CDNs), over-the-top video services, or
voice-over-Internet-Protocol (VoIP) telephony services. Our questions
instead are directed toward addressing broadband Internet service in a
way that is consistent with the Communications Act, reduces uncertainty
that may chill investment and innovation if allowed to continue, and
accomplishes Congress's pro-consumer, pro-competition goals for
broadband.
Discussion
Background
11. The Commission has long sought to ensure that communications
networks support a robust marketplace for computer services operated
over publicly accessible networks, from the early database lookup
services to today's social networking sites. To provide context for the
later discussion of the Commission's options for a suitable framework
for broadband Internet service, we briefly describe this historical
backdrop.
The Commission's Classification Decisions
12. In 1966, the Commission initiated its Computer Inquiries ``to
ascertain whether the services and facilities offered by common
carriers are compatible with the present and anticipated communications
requirements of computer users.'' In Computer I, the Commission
required ``maximum separation'' between large carriers that offered
data transmission services subject to common carrier requirements and
their affiliates that sold data processing services. Refining this
approach, in Computer II and Computer III the Commission required
facilities-based providers of ``enhanced services'' to separate out and
offer on a common carrier basis the ``basic service'' transmission
component underlying their enhanced services.
13. In the Telecommunications Act of 1996, Congress built upon the
Computer Inquiries by codifying the Commission's distinction between
``telecommunications services'' used to transmit information (akin to
offerings of ``basic services'') and ``information services'' that run
over the network (akin to ``enhanced services''). In a 1998 report to
Congress, the Commission attempted to indicate how it might apply the
new law in the Internet context. Approximately 98 percent of households
with Internet connections then used traditional telephone service to
``dial up'' their Internet access service provider, which was typically
a separate entity from their telephone company. In the report to
Congress--widely known as the ``Stevens Report,'' after Senator Ted
Stevens--the Commission stated
[[Page 36074]]
that Internet access service as it was then being provided was an
``information service.'' The Stevens Report declined to address whether
entities that provided Internet connectivity over their own network
facilities were offering a separate telecommunications component. The
courts, rather than the Commission, first answered that question.
14. In 2000 the United States Court of Appeals for the Ninth
Circuit held that cable modem Internet service is a telecommunications
service to the extent that the cable operator ``provides its
subscribers Internet transmission over its cable broadband facility''
and an information service to the extent the operator acts as a
``conventional [Internet Service Provider (ISP)].'' At the time, the
Commission's Computer Inquiry rules required telephone companies to
offer their digital subscriber line (DSL) transmission services as
telecommunications services. The Ninth Circuit's decision thus put
cable companies' broadband transmission service on a regulatory par
with DSL transmission service.
15. In 2002, the Commission exercised its authority to interpret
the Act and disagreed with the Ninth Circuit. Addressing the
classification of cable modem service, the Commission observed that
``[t]he Communications Act does not clearly indicate how cable modem
service should be classified or regulated.'' Based on a factual record
that had been compiled largely in 2000, the Commission's Cable Modem
Declaratory Ruling described cable modem service as ``typically
includ[ing] many and sometimes all of the functions made available
through dial-up Internet access service, including content, e-mail
accounts, access to news groups, the ability to create a personal Web
page, and the ability to retrieve information from the Internet,
including access to the World Wide Web.'' The Commission noted that
cable modem providers often consolidated these functions ``so that
subscribers usually do not need to contract separately with another
Internet access provider to obtain discrete services or applications,
such as an e-mail account or connectivity to the Internet, including
access to the World Wide Web.'' The Commission defined cable modem
service as ``a service that uses cable system facilities to provide
residential subscribers with high-speed Internet access, as well as
many applications or functions that can be used with high-speed
Internet access.''
16. The Commission identified a portion of the cable modem service
it called ``Internet connectivity,'' which it described as establishing
a physical connection to the Internet and interconnecting with the
Internet backbone, and sometimes including protocol conversion,
Internet Protocol (IP) address number assignment, domain name
resolution through a domain name system (DNS), network security,
caching, network monitoring, capacity engineering and management, fault
management, and troubleshooting. The Ruling also noted that ``[n]etwork
monitoring, capacity engineering and management, fault management, and
troubleshooting are Internet access service functions that are
generally performed at an ISP or cable operator's Network Operations
Center (NOC) or back office and serve to provide a steady and accurate
flow of information between the cable system to which the subscriber is
connected and the Internet.'' The Commission distinguished these
functions from ``Internet applications [also] provided through cable
modem services,'' including ``e-mail, access to online newsgroups, and
creating or obtaining and aggregating content,'' ``home pages,'' and
``the ability to create a personal Web page.''
17. The Commission found that cable modem service was ``an offering
. . . which combines the transmission of data with computer processing,
information provision, and computer interactivity, enabling end users
to run a variety of applications.'' The Commission further concluded
that, ``as it [was] currently offered,'' cable modem service as a whole
met the statutory definition of ``information service'' because its
components were best viewed as a ``single, integrated service that
enables the subscriber to utilize Internet access service,'' with a
telecommunications component that was ``not . . . separable from the
data processing capabilities of the service.'' The Commission thus
concluded that cable modem service ``does not include an offering of
telecommunications service to subscribers.''
18. When the United States Supreme Court considered the Cable Modem
Declaratory Ruling in the Brand X case, all parties agreed that cable
modem service either is or includes an information service. The Court
therefore focused, in pertinent part, on whether the Commission
permissibly interpreted the Communications Act in concluding that cable
modem service providers offer only an information service, rather than
a separate telecommunications service and information service. The
Court's opinion reaffirms that courts must defer to the implementing
agency's reasonable interpretation of an ambiguous statute. Justice
Thomas, writing for the six-Justice majority, recited that
``ambiguities in statutes within an agency's jurisdiction to administer
are delegations of authority to the agency to fill the statutory gap in
reasonable fashion. Filling these gaps * * * involves difficult policy
choices that agencies are better equipped to make than courts.''
Furthermore, ``[a]n initial agency interpretation is not instantly
carved in stone. On the contrary, the agency * * * must consider
varying interpretations and the wisdom of its policy on a continuing
basis.''
19. Turning specifically to the Communications Act, Justice Thomas
wrote: ``[T]he statute fails unambiguously to classify the
telecommunications component of cable modem service as a distinct
offering. This leaves federal telecommunications policy in this
technical and complex area to be set by the Commission.'' ``The
questions the Commission resolved in the order under review,'' Justice
Thomas summed up, ``involve a subject matter [that] is technical,
complex, and dynamic. The Commission is in a far better position to
address these questions than we are.'' Justice Breyer concurred with
Justice Thomas, stating that he ``believe[d] that the Federal
Communications Commission's decision falls within the scope of its
statutorily delegated authority,'' although ``perhaps just barely.''
20. In dissent, Justice Scalia, joined by Justices Souter and
Ginsburg, expressed the view that the Commission had adopted ``an
implausible reading of the statute[,] * * * thus exceed[ing] the
authority given it by Congress.'' Justice Scalia reasoned that ``the
telecommunications component of cable-modem service retains such ample
independent identity that it must be regarded as being on offer--
especially when seen from the perspective of the consumer or end
user.''
21. After the Supreme Court affirmed the Commission's authority to
classify cable modem service, the Commission eliminated the resulting
regulatory asymmetry between cable companies and other broadband
Internet service providers by issuing follow-on orders that extended
the information service classification to broadband Internet services
offered over DSL and other wireline facilities, power lines, and
wireless facilities. The Commission nevertheless allowed these
providers, at their own discretion, to offer the broadband transmission
component of their Internet service as a separate telecommunications
service. Exercising that flexibility, providers--including more than
840 incumbent local
[[Page 36075]]
telephone companies--currently offer broadband transmission as a
telecommunications service expressly separate from their Internet
information service.
The Commission's Established Policy Goals
22. In the 1996 Act, Congress made clear its desire that the
Commission promote the widespread availability of affordable Internet
connectivity services, directing the Commission to adopt universal
service mechanisms to ensure that ``[a]ccess to advanced
telecommunications and information services * * * [is] provided in all
regions of the Nation.'' Congress also instructed the Commission to
``encourage the deployment on a reasonable and timely basis of advanced
telecommunications capability to all Americans.'' The Commission's
classification decisions in the Cable Modem Declaratory Ruling and the
later follow-on orders were intended to support the policy goal of
encouraging widespread deployment of broadband. The Commission's
hypothesis was that classifying all of broadband Internet service as an
information service, outside the scope of any specific regulatory duty
in the Act, would help achieve Congress' aims.
23. At the same time, the Commission acted with the express
understanding that its information service classifications would not
impair the agency's ability to protect the public interest. For
example, when the Commission permitted telephone companies to offer
broadband Internet service as solely an information service, it
emphasized that this new classification would not remove the agency's
``ample'' Title I authority to accomplish policy objectives related to
consumer protection, network reliability, and national security. The
Wireline Broadband Report and Order thus was accompanied by a Broadband
Consumer Protection Notice, in which the Commission sought comment on
``a framework that ensures that consumer protection needs are met by
all providers of broadband Internet access service, regardless of the
underlying technology.'' The Commission stressed that its ancillary
jurisdiction was ``ample to accomplish the consumer protection goals we
identify.'' The Commission similarly referenced the Broadband Consumer
Protection Notice when it extended the information service
classification to broadband Internet services offered over power lines
and wireless facilities.
24. On the same day it adopted the Wireline Broadband Report and
Order and Broadband Consumer Protection Notice, moreover, the
Commission unanimously adopted the Internet Policy Statement. In this
Statement, the Commission articulated four principles ``[t]o encourage
broadband deployment and preserve and promote the open and
interconnected nature of the public Internet,'' and to ``foster
creation adoption and use of Internet broadband content, applications,
services and attachments, and to insure consumers benefit from the
innovation that comes from competition.'' The principles are:
consumers are entitled to access the lawful Internet
content of their choice;
consumers are entitled to run applications and use
services of their choice, subject to the needs of law enforcement;
consumers are entitled to connect their choice of legal
devices that do not harm the network; and
consumers are entitled to competition among network
providers, application and service providers, and content providers.
All principles are subject to reasonable network management.
The Commission expressed confidence that it had the ``jurisdiction
necessary to ensure that providers of telecommunications for Internet
access * * * are operated in a neutral manner.''
Legal Developments
25. Recent legislative and judicial developments suggest a need to
revisit the Commission's approach to broadband Internet service. Since
2008, Congress has passed three significant pieces of legislation that
reflect its strong interest in ubiquitous deployment of high speed
broadband communications networks and bear on the Commission's policy
goals for broadband: the 2008 Farm Bill directing the Chairman to
submit to Congress ``a comprehensive rural broadband strategy,''
including recommendations for the rapid buildout of broadband in rural
areas and for how federal resources can ``best * * * overcome obstacles
that impede broadband deployment''; the Broadband Data Improvement Act,
to improve data collection and ``promote the deployment of affordable
broadband services to all parts of the Nation''; and the Recovery Act,
which, among other things, appropriated up to $7.2 billion to evaluate,
develop, and expand access to and use of broadband services, and
required the Commission to develop the National Broadband Plan to
ensure that every American has ``access to broadband capability and * *
* establish benchmarks for meeting that goal.'' In the Recovery Act,
Congress further directed the Commission to produce a ``detailed
strategy for achieving affordability of such service and maximum
utilization of broadband infrastructure and service by the public,''
and a ``plan for [the] use of broadband structure and services'' to
advance national goals such as public safety, consumer welfare, and
education. These three pieces of legislation, passed within a span of
nine months, make clear that the Commission must retain its focus on
implementing broadband policies that encourage investment, innovation,
and competition, and promote the interests of consumers.
26. Even more recently, the D.C. Circuit's rejection of the
Commission's attempt to address a broadband Internet service provider's
unreasonable traffic disruption practices has cast a shadow over the
Commission's prior understanding of its authority over broadband
Internet services. In late 2007, the Commission received a complaint
alleging that Comcast was blocking peer-to-peer traffic in violation of
the Internet Policy Statement. In 2008, the Commission granted the
complaint and directed Comcast to disclose specific information about
its network management practices to the Commission, submit a compliance
plan detailing how it would transition away from unreasonable network
management practices, and disclose to the public the network management
practices it intends to use going forward. Comcast challenged that
decision in the D.C. Circuit, arguing (among other things) that the
Commission lacks authority to prohibit a broadband Internet service
provider from engaging in discriminatory practices that violate the
four principles the Commission announced in 2005.
27. On April 6, 2010, the D.C. Circuit granted Comcast's petition
for review and vacated the Commission's enforcement decision, holding
that the Commission had ``failed to tie its assertion of ancillary
authority over Comcast's Internet service to any `statutorily mandated
responsibility.''' The Commission had argued that ending Comcast's
secret practices was ancillary to the statutory objectives Congress
established for the Commission in sections 1 and 230(b) of the Act. The
court rejected that argument on the ground that those sections are
merely statements of policy by Congress--as opposed to grants of
regulatory authority--and thus were not sufficient to support
Commission action against Comcast. The court also rejected the
Commission's position that various
[[Page 36076]]
other statutory provisions supported ancillary authority. As to section
706 of the Telecommunications Act of 1996, the court noted that the
agency had previously interpreted section 706 as not constituting a
grant of authority and held that the Commission was bound by that
interpretation for purposes of the case. The court also rejected the
agency's reliance on sections 201, 256, 257, and 623 of the
Communications Act.
Approaches to Classification
28. In light of the legislative and judicial developments described
above, we seek comment on whether our existing legal framework
adequately supports the Commission's previously stated policy goals for
broadband. First, we ask whether the current information service
classification of broadband Internet service can still support
effective performance of the Commission's core responsibilities.
Second, we ask for comment on the legal and practical consequences of
classifying the Internet connectivity component of broadband Internet
service as a ``telecommunications service'' to which the full weight of
Title II requirements would apply, and whether such a classification
would accurately reflect the current market facts. Finally, we identify
and invite comment on a third way, under which the Commission would
classify the Internet connectivity portion of broadband Internet
service as a telecommunications service but would simultaneously
forbear, using the section 10 authority Congress delegated to us, from
all but a small handful of provisions necessary for effective
implementation of universal service, competition and small business
opportunity, and consumer protection policies.
29. The Commission has frequently expressed its commitment to
protecting consumers and promoting innovation, investment, and
competition in the broadband context. We reaffirm that commitment here
and ask commenters to address--in general terms, as well as in response
to the specific questions posed below--which of the three alternative
regulatory frameworks for broadband Internet service (or what other
framework) will best position the Commission to advance these
fundamental goals. We note that because the broadband Internet service
classification questions posed in this part II.B involve an
interpretation of the Communications Act, the notice and comment
procedures we follow here are not required under the Administrative
Procedure Act. In order to provide the greatest possible opportunity
for public comment, however, we are soliciting initial and reply
comments via the traditional filing mechanisms, as well as input
through our recently expanded online participation tools.
Continued Information Service Classification and Reliance on Ancillary
Authority
30. In this part, we seek comment on maintaining the current
classification of wired broadband Internet service as a unitary
information service. Under this approach, we would rely primarily on
our ancillary authority to implement the Commission's broadband
policies. We seek comment on whether our ancillary authority continues
to provide an adequate legal foundation. Throughout the last decade,
the Commission has stated its consistent understanding that Title I
provided the Commission adequate authority to support effective
performance of its core responsibilities. Commissioners, including the
two former Chairmen who urged the information service approach, as well
as cable and telephone companies and other interested parties,
individually expressed this understanding. In Brand X, the Supreme
Court appeared to confirm this widely held view, stating that ``the
Commission remains free to impose special regulatory duties on
facilities-based ISPs under its Title I ancillary jurisdiction.'' The
Comcast decision, however, causes us to reexamine our ability to rely
on Title I as the legal basis for implementing broadband policies.
31. Some have suggested that although the D.C. Circuit rejected the
Commission's theory of ancillary authority in Comcast, the Commission
can still accomplish many of its most important broadband-related goals
without changing its classification of broadband Internet service as a
unitary information service. We seek comment on the overall scope of
the Commission's authority regarding broadband Internet service in the
wake of the Comcast decision. Below we identify and seek comment on
several particular concerns.
Universal Service
32. Can the Commission reform its universal service program to
support broadband Internet service by asserting direct authority under
section 254, combined with ancillary authority under Title I? AT&T, for
example, observes that section 254 provides that ``[a]ccess to advanced
telecommunications and information services should be provided in all
regions of the nation,'' and that the Commission's universal service
programs ``shall'' be based on this and other enumerated principles.
AT&T notes that the Commission's information service classification for
broadband Internet service creates ``tension'' with ``the text of
Section 254(c)(1), which states that `[u]niversal service is an
evolving level of telecommunications services that the Commission shall
establish periodically under this section.' '' But, AT&T suggests,
``[o]ther evidence in the statutory text makes clear that Congress did
not intend to disable the Commission from using universal service to
support information services.'' For example,
``Section 254(b) requires the Commission to use universal
service to promote access to `advanced telecommunications and
information services,' ''
``Section 254(c) * * * [refers] to an `evolving level of
telecommunications services that the Commission shall establish
periodically under this section[,]' '' and
Section 254(c)(2) ``expressly authoriz[es] the Joint Board
and the Commission to `modif[y] * * * the definition of the services
that are supported by Federal universal support mechanisms.' '' The
reference to ``services'' in section 254(c)(2) may suggest that
Congress intended universal service policies to support information
services, even though the definition of universal service in section
254(c)(1) is explicitly limited to ``telecommunications services.''
AT&T explains that section 254 ``contains competing directives,''
but asserts that ``the schizophrenic nature of Section 254 is simply
another example of the many ways in which the 1996 Act is not a `model
of clarity.' ''
33. We seek comment on whether we may interpret section 254 to give
the Commission authority to provide universal service support for
broadband Internet service if that service is classified as a unitary
information service. Could we provide support to information service
providers consistent with section 254(e), which says that ``only an
eligible telecommunications carrier designated under section 214(e)
shall be eligible to receive specific Federal universal service
support,'' and 214(e), which sets forth the framework for designating
``telecommunications carrier[s] * * * eligible to receive universal
service support''?
34. AT&T posits that even after the Comcast decision, the
Commission could bolster its reliance on section 254 by also relying on
several other provisions of the Act. First, the ``necessary and proper
clause'' in section
[[Page 36077]]
4(i) of the Act allows the Commission to ``perform any and all acts,
make such rules and regulations, and issue such orders, not
inconsistent with this chapter, as may be necessary in the execution of
its functions.'' Second, the Act makes clear that the Commission's
``core statutory mission'' is to ``make available, so far as possible,
to all the people of the United States * * * a rapid, efficient,
Nation-wide and world-wide wire and radio communication service with
adequate facilities at reasonable charges.'' Third, the text of 254, as
described above, suggests that Congress intended the Commission to
support universal broadband Internet service. Finally, the policy
directive in section 706 of the 1996 Act instructs the Commission to
encourage the deployment on a reasonable and timely basis of advanced
telecommunications capability to all Americans. AT&T contends that
section 706's directive supports the view that section 254 provides
authority for supporting broadband Internet services with monies from
the Universal Service Fund. We seek comment on AT&T's analysis.
35. The National Cable and Telecommunications Association (NCTA)
has put forward a similar legal theory rooted in section 254(h)(2) of
the Communications Act. That section gives the Commission authority
``to enhance * * * access to advanced telecommunications and
information services for all public and non-profit elementary and
secondary school classrooms, health care providers, and libraries.''
NCTA contends that because ``the use of broadband in the home has
become a critical component of the American education system * * * it
is entirely reasonable to read the statutory directive to support
Internet access for classrooms to include support for residential
broadband service to households where it is reasonably likely that such
service would be used for educational purposes.'' Could the Commission
interpret section 254(h)(2) to permit this type of support for
broadband Internet service? Is this approach a permissible extension of
the Commission's existing E-Rate program? Would this approach enable
the Commission to provide support for broadband Internet service only
to households with school-aged children, or could the Commission
provide support for adult education as well?
36. Another legal theory for promoting broadband deployment under
the Commission's current classification of broadband Internet service
rests directly on section 706 of the 1996 Act. Section 706(a) states
that the Commission ``shall encourage the deployment on a reasonable
and timely basis of advanced telecommunications capability to all
Americans * * * by utilizing, in a manner consistent with the public
interest, convenience, and necessity, price cap regulation, regulatory
forbearance, measures that promote competition in the local
telecommunications market, or other regulating methods that remove
barriers to infrastructure investment.'' Section 706(c) defines
``advanced telecommunications capability'' as ``high-speed, switched,
broadband telecommunications capability that enables users to originate
and receive high-quality voice, data, graphics, and video
telecommunications using any technology.'' The D.C. Circuit rejected
section 706(a) as a basis for the Commission's Comcast order because
``[i]n an earlier, still-binding order * * * the Commission ruled that
section 706 `does not constitute an independent grant of authority,' ''
and ``agencies `may not * * * depart from a prior policy sub silentio.'
'' We seek comment on whether the Commission should revisit and change
its conclusion that section 706(a) is not an independent grant of
authority. What findings would be necessary to reverse that
interpretation? If the Commission were to find that section 706(a) is
an independent grant of authority, would that subsection, read in
conjunction with sections 4(i) and 254, provide a firm basis for the
Commission to provide universal service support for broadband Internet
services?
37. Some parties have suggested that the Commission could rely on
section 706(b) as a source of authority to support broadband Internet
service with Universal Service Fund money. That section provides that:
[t]he Commission shall * * * annually * * * initiate a notice of
inquiry concerning the availability of advanced telecommunications
capability to all Americans * * * . In the inquiry, the Commission
shall determine whether advanced telecommunications capability is
being deployed to all Americans in a reasonable and timely fashion.
If the Commission's determination is negative, it shall take
immediate action to accelerate deployment of such capability by
removing barriers to infrastructure investment and by promoting
competition in the telecommunications market.
We seek comment on whether we could interpret section 706(b) as an
independent grant of authority. Specifically, we ask whether Congress's
direction that the Commission take ``immediate action'' if it makes a
negative determination about the state of broadband deployment
authorizes the Commission to provide universal service support to spur
that deployment. Would any such support be contingent on continued
negative findings in the annual broadband availability inquiry? Under
section 706(b), would universal service programs have to be tailored to
particular geographic areas where deployment is lagging, or could the
Commission implement the program on a national basis? Would the
Commission be limited to direct support for deployment, or could the
Commission interpret section 706(b) also to support broadband Internet
services to low-income populations, such as is the case with our
support for voice services in the Lifeline and Link Up programs?
38. For each of these legal theories, the Commission seeks comment
on the administrative record that would be needed to successfully
defend against a legal challenge to implementation of the theory. Would
adopting these theories be consistent with the federal Anti-Deficiency
Act and Miscellaneous Receipts Act? What other issues should the
Commission consider in evaluating these legal theories? Are there other
legal frameworks that would allow us to promote universal service in
the broadband context without revisiting our classification decisions?
Privacy
39. The Commission has long supported protecting the privacy of
users of broadband Internet services. In 2005, the Commission
emphasized in the Wireline Broadband Report and Order that
``[c]onsumers' privacy needs are no less important when consumers
communicate over and use broadband Internet access than when they rely
on [telephone] services.'' The Commission believed at the time that it
had jurisdiction to enforce privacy requirements, and ``note[d] that
long before Congress enacted section 222 of the Act,'' which requires
providers of telecommunications services to protect confidential
information, ``the Commission had recognized the need for privacy
requirements associated with the provision of enhanced services.'' In
2007, the Commission extended the privacy protections of section 222 to
interconnected VoIP services without resolving whether interconnected
VoIP services are telecommunications services or information services.
More recently, the National Broadband Plan recommended that the
Commission work with the Federal Trade Commission (FTC) to protect
consumers' privacy in the broadband context. Indeed, we fully intend
that our efforts with regard to
[[Page 36078]]
privacy complement those of the FTC. We seek comment on the best
approach for ensuring privacy for broadband Internet service users
under the Commission's current information service classification, and
any legal obstacles to protecting privacy that may exist if the
Commission retains that classification.
Access for Individuals With Disabilities
40. Section 255 requires telecommunications service providers and
equipment manufacturers to make their services and equipment accessible
to individuals with disabilities, unless not readily achievable.
Section 251(a)(2) requires telecommunications carriers ``not to install
network features, functions, or capabilities that do not comply with
the guidelines and standards established pursuant to section 255.'' In
the 2005 Wireline Broadband Report and Order, the Commission committed
to exercise its authority ``to ensure achievement of important policy
goals of section 255'' in the broadband context. In 2007, the
Commission exercised its ancillary authority to extend section 255 to
interconnected VoIP providers, and in 1999 the Commission similarly
relied on ancillary authority to extend disability-related requirements
to voicemail and interactive menu services. The Commission also
exercised ancillary authority to extend section 225 telecommunications
relay service obligations under the Commission's rules to providers of
interconnected VoIP. More recently, a unanimous Commission stated its
belief that disabilities should not stand in the way of Americans'
``opportunity to benefit from the broadband communications era.'' The
Commission has also announced its intent to consider how ``[t]o better
enable Americans with disabilities to experience the benefits of
broadband.'' We seek comment on the best legal approaches to extending
disability-related protections to broadband Internet service users
under the Commission's current information service classification.
Could we exercise ancillary authority to ensure access for people with
disabilities? Could the Commission rely on the mandate in section
706(a) to ``encourage the deployment on a reasonable and timely basis
of advanced telecommunications capability to all Americans,'' or the
similar directive in section 706(b)?
Public Safety and Homeland Security
41. As noted above, Congress created the Commission, in part, ``for
the purpose of the national defense, [and] for the purpose of promoting
safety of life and property through the use of wire and radio
communications.'' Comcast did not address questions of national
defense, public safety, homeland security, or national security. Are
there bases for asserting ancillary authority over broadband Internet
service providers for purposes of advancing such vital and clearly
enumerated Congressional purposes? Could the Commission use its
ancillary authority as a legal foundation for protecting cyber security
and other public safety initiatives, such as 911 emergency and public
warning and alerting services, with respect to broadband Internet
service? Specifically, could the Commission rely on provisions in Title
I either alone or in combination with provisions in Title II or Title
III to support these public safety purposes, as well as data reporting
and/or network reliability and resiliency standards with respect to
broadband Internet services? As noted below, Title III contains several
provisions that enable the Commission to impose on spectrum licensees
obligations that are in the public interest. With the convergence of
the various modes of communications networks, many broadband Internet
services incorporate wireline and wireless elements. What would be the
effect if the Commission employed its Title III authority to achieve
public safety goals with respect to wireless elements of such converged
services? Could the Commission also regulate wireline elements of such
services through its Title III and Title I authority because of the
wireless elements incorporated into these services, or in the interests
of ensuring regulatory parity and predictability? Could the Commission
rely on the mandate in section 706(a) to ``encourage the deployment on
a reasonable and timely basis of advanced telecommunications capability
to all Americans'' to ensure the security, reliability and resiliency
of wired broadband Internet services, or to advance other public safety
and homeland security initiatives?
Addressing Harmful Practices by Internet Service Providers
42. Although the D.C. Circuit rejected the legal theory the
Commission relied on to address Comcast's interference with its
customers' peer-to-peer transmissions, some have suggested that other
theories of ancillary authority could support Commission action to
protect against harmful practices of this sort. For example, one
commentator has proposed that the Commission assert ancillary authority
pursuant to sections 251(a) and 256 of the Act, which address
interconnection by telecommunications carriers. Although these
provisions apply specifically to telecommunications carriers, the
proposal asserts that they are not explicitly limited to the
telecommunications services provided by such carriers.
43. Section 251(a) requires each carrier ``to interconnect directly
or indirectly with the facilities and equipment of other
telecommunications carriers.'' Reading section 251(a) as limited to
telecommunication services, it has been suggested, ``would make [the
Commission's] rules promoting interconnection irrelevant'' as the major
carriers move increasingly toward providing services over broadband
Internet networks. Likewise, ``[i]n a world where traditional public
telecommunications networks and newer Internet-data-transmission
networks are pervasively interconnected,'' it has been asserted, ``it
makes no sense to preclude the FCC's interoperability efforts [pursuant
to section 256] from affecting information services.''
44. We seek comment on this reasoning. What factual findings would
the Commission have to make to support reliance on sections 251(a) and/
or 256 with respect to broadband Internet service? Would those facts
support exercise of authority sufficient to implement the Commission's
broadband policies in full, or in part? Under this approach, could the
Commission address conduct by broadband Internet service providers that
are not also telecommunications carriers? Does reliance on sections
251(a) and 256 limit Commission authority to protect competition and
consumers to only those networks that are interconnected with the
public telephone network? If so, what are the practical implications of
this limitation? What is the significance of the Comcast decision,
which held that ``[t]he Commission's attempt to tether its assertion of
ancillary authority to section 256'' was flawed in that context because
section 256 states that ``[n]othing in this section shall be construed
as expanding or limiting any authority that the Commission'' otherwise
has under law? What else should the Commission consider as it evaluates
the significance of sections 251(a) and 256 in this proceeding?
45. Section 202(a) of the Communications Act makes it unlawful for
any common carrier to make any unjust or unreasonable discrimination in
charges, practices, classifications, regulations, facilities, or
services for or in connection with like communication
[[Page 36079]]
service, directly or indirectly, by any means or device, or to make or
give any undue or unreasonable preference or advantage to any
particular person, class of persons, or locality, or to subject any
particular person, class of persons, or locality to any undue or
unreasonable prejudice or disadvantage.
It has been suggested that ``[i]f network operators are allowed the
option of offering broadband Internet access services on a completely
unregulated basis, that option could enable them to end run Section
202(a)'' as carriers move toward providing services over broadband
Internet networks, ``and render that provision a dead letter.'' We seek
comment on the factual and legal assumptions underlying this argument,
and whether this reasoning provides the Commission authority to address
practices of broadband Internet service providers that endanger
competition or consumer welfare.
46. As the Commission argued to the D.C. Circuit in the Comcast
case, section 706(a) might also provide a basis for prohibiting harmful
practices of Internet service providers. As noted above, the D.C.
Circuit gave no weight to section 706(a) because the Commission had
determined in a prior order that section 706(a) is not an independent
grant of authority. We seek comment on the best reading of section
706(a). We also seek comment on whether section 706(b) could provide a
legal foundation for rules addressing harmful practices by Internet
service providers. If so, could the Commission adopt such rules on a
national basis, or would it have to tailor its rules to particular
geographic areas? Would its rules depend on continued negative
determinations in the annual broadband availability report?
47. The Comcast opinion also rejected arguments that other
provisions of Titles II, III, and VI of the Communications Act
supported the Commission's action against Comcast because Internet-
enabled communications services that depend on broadband Internet
service--such as VoIP and Internet video services--may affect the
regulated operations of telephony common carriers, broadcasters, and
cable operators. The court did not address the merits of these
theories, but rather rejected them because they were not sufficiently
articulated in the underlying Commission order. Could such theories
provide sufficient support for the Commission to address harmful
practices of Internet service providers? What type of factual record
would be required to support such theories? If the Commission relied on
these theories, could it prohibit behavior--such as the covert blocking
of online gaming or e-commerce services, perhaps--that does not
obviously affect services clearly addressed by Titles II, III, or VI?
Could the Commission rely on sections 624 or 629 of the Act to
establish broadband policy related to cable modem service?
48. We also invite comment on whether the portions of section
214(a) addressing discontinuance, reduction, and impairment of service
provide a potential basis for an assertion of ancillary authority
regarding harmful Internet service provider practices. That provision
mandates that a common carrier may not ``impair service to a
community'' without prior Commission approval. Impairment, in the
section 214(a) context, refers to both ``the adequacy'' and ``quality''
of the service provided.
49. Are there other statutory provisions that could support the
Commission's exercise of ancillary authority in this area? Do any
statutory provisions preclude such action if the Commission retains its
information service classification?
50. Other harmful practices by broadband Internet service providers
may involve a failure to disclose practices to consumers. For instance,
one problem identified by the Commission in the Comcast case was
Comcast's failure to identify to customers its practice of degrading
peer-to-peer traffic. If the Commission maintains its information
services framework for broadband Internet services, will it have
sufficient authority to address these concerns?
Other Approaches to Oversight
51. Finally, we ask for public input on whether there are other
approaches to fulfilling our role for broadband Internet services that
would provide meaningful oversight consistent with maintaining robust
incentives for innovation and investment. For instance, in a number of
proceedings commenters have suggested that the Commission should pursue
policies based on standards set by third parties and enforced by the
Commission. In the Open Internet proceeding, Verizon and Google suggest
that the Commission could create technical advisory groups ``comprised
of a range of stakeholders with technical expertise'' to develop best
practices, resolve disputes, issue advisory opinions, and coordinate
with standards-setting bodies. Although Verizon and Google ``may not
necessarily agree on which federal agency does or should have authority
over these matters,'' they ``do recognize as a policy matter that there
should be some backstop role for federal authorities to prevent harm to
competition and consumers if or when bad actors emerge anywhere in the
Internet space, and * * * agree that involvement should occur only
where necessary on a case-by-case base basis.'' Commenters in other
proceedings have suggested similar approaches. We ask commenters to
address whether the Commission should pursue a regime in which one or
more third parties play a major role in setting standards and best
practices relative to maintaining our policy goals for broadband
Internet service. Pursuant to what authority could the Commission
create a third party advisory group? What authority could the
Commission delegate to such a third party or third parties? Would it be
appropriate for other federal governmental entities, such as the FTC,
to have a role in such an approach? Would the Commission have
sufficient ancillary authority under its information service framework
to serve as a backstop if the third party is unable to resolve a
dispute or implement a necessary policy?
Application of All Title II Provisions
52. Title II of the Communications Act provides the Commission
express authority to implement, for telecommunications services, rules
furthering universal service, privacy, access for persons with
disabilities, and basic consumer protection, among other federal
policies. We seek comment on whether the legal and policy developments
discussed above and the facts of today's broadband marketplace suggest
a need to classify Internet connectivity as a telecommunications
service, so as to trigger this clear authority. We also ask whether
that approach would be consistent with our goals of promoting
innovation and investment in broadband, or would result in
overregulation of a service that has undergone rapid and generally
beneficial development under our deregulatory approach.
Current Facts in the Broadband Marketplace
53. In the Cable Modem Declaratory Ruling, the Commission observed
that ``the cable modem service business is still nascent, and the shape
of broadband deployment is not yet clear,'' and nearly a decade has
passed since the Commission examined the facts surrounding broadband
Internet service in the Cable Modem Declaratory Ruling. In this part we
therefore ask whether or not the facts of today's broadband marketplace
support a conclusion that providers now offer Internet connectivity as
a separate
[[Page 36080]]
telecommunications service. In addition to the specific questions we
ask below, we seek comment on what facts are most relevant to this
inquiry. The Commission has explained that because the Act defines
``telecommunications service'' as `` `the offering of
telecommunications for a fee directly to the public[,]' * * * whether a
telecommunications service is being provided turns on what the entity
is `offering * * * to the public,' and customers' understanding of that
service.'' Similarly, in Brand X, the majority opinion noted that
``[i]t is common usage to describe what a company `offers' to a
consumer as what the consumer perceives to be the integrated finished
product.'' The Brand X dissent asserted that ``[t]he relevant question
is whether the individual components in a package being offered still
possess sufficient identity to be described as separate objects of the
offer, or whether they have been so changed by their combination with
the other components that it is no longer reasonable to describe them
in that way.'' The Brand X majority opinion and the dissent examined
consumers' understanding of the services, analogies to other services,
and technical characteristics of the services being provided. What
factors should the Commission consider in order to assess the proper
classification of broadband Internet connectivity service?
54. Status of Current Offerings. Is wired broadband Internet
service (or any telecommunications component thereof) held out ``for a
fee directly to the public, or to such classes of users as to be
effectively available directly to the public,'' for instance through a
tariff such as the NECA DSL Access Service Tariff or through
facilities-based Internet service providers' public Web sites? A
provider is engaged in common carriage if it ``make[s] capacity
available to the public indifferently''; it can be compelled to offer a
common carriage service if ``the public interest requires common
carrier operation of the proposed facility.'' If so, we seek specific
examples of such offerings. If not, does the Commission have legal
authority to compel the offering of a broadband Internet
telecommunications service that is not currently offered? If legal
authority exists, would it be appropriate for the Commission to
exercise such authority? Are there First Amendment constraints on the
Commission's ability to compel the offering of such a service? Would
such a compulsion raise any concerns under the Takings Clause of the
Fifth Amendment?
55. Services Offered Today. When the Commission gathered the record
for its classification orders, broadband Internet service was offered
with various services--such as e-mail, newsgroups, and the ability to
create and maintain a web page--that we described as ``Internet
applications.'' The Commission understood that subscribers to broadband
Internet services ``usually d[id] not need to contract separately'' for
``discrete services or applications'' such as e-mail. We seek comment
on whether this remains the case. To what extent are these and other
applications and services sold with wired broadband Internet service
today? Are providers offering the same applications and services that
they did when the Commission began building the record in 2000, or have
their offerings changed? Are these applications and services always
packaged with Internet connectivity, or can consumers choose not to
purchase them? What test(s) should the Commission use to evaluate
whether particular features are today integrated with the underlying
Internet connectivity?
56. Consumer Use and Perception. Next, we seek comment on how
consumers use and perceive broadband Internet service. Do customers
today perceive that they are receiving one unitary service comprising
Internet connectivity as well as features and functionalities, or
Internet connectivity as the main service, with additional features and
functionalities simultaneously offered and provided? We note that under
Commission precedent, services composing a single bundle at the point
of sale--for instance, local telephone service packaged with voice
mail--can retain distinct identities as separate offerings for
classification purposes. To what extent do consumers continue to rely
on the features and applications that are provided as part of their
broadband Internet service package, and to what extent have they
increased their use of applications and services offered by third party
providers? For instance, some users now rely on free e-mail services
provided by companies such as Yahoo and Microsoft, social networking
sites including Facebook and MySpace, public message boards like those
found in the Google Groups service, web portals like Netvibes, web
hosting services like Go Daddy, and blog hosting services like TypePad.
How does the use of these third party services compare with the use of
similar services offered by broadband Internet service providers? To
what extent do consumers rely on their Internet service provider or
other providers for security features and spam filtering? To what
extent do consumers rely on their Internet service provider, as opposed
to alternative providers, for content such as news and medical advice?
To the extent broadband Internet service providers offer applications
to consumers, do consumers view them as an integrated part of the
Internet connectivity offering? To what extent do consumers today use
``the high-speed wire always in connection with the information-
processing capabilities provided by Internet access''?
57. Marketing Practices. We also seek comment on how broadband
Internet service providers market their services. What do broadband
Internet service providers' marketing practices suggest they are
offering to the public? What features do broadband Internet service
providers highlight in their advertisements to consumers? How do the
companies describe their services? What are the primary dimensions of
competition among broadband Internet service providers? Are cable modem
and other wired services marketed or understood differently from each
other, or in a generally similar way?
58. Technical and Functional Characteristics. In addition, to aid
our understanding of what carriers offer to consumers, we seek to
develop a current record on the technical and functional
characteristics of broadband Internet service, and whether those
characteristics have changed materially in the last decade. For
example, DNS lookup is now offered to consumers on a standalone basis,
and web page caching is offered by third party content delivery
networks. Web browsers, for example, are often installed separately by
users. We ask commenters to describe the technical characteristics of
broadband Internet service, including identifying those functions that
are essential for web browsing and other basic consumer Internet
activities. What are the necessary components of web browsing? How is
caching provided to end users, and how have caching services changed
over time? How do routing functions and DNS directory lookup enable
users to access information online?
59. In classifying services, the Commission has taken into account
the purpose of the feature or service at issue. For example, some
features and services that meet the literal definition of ``enhanced
service,'' but do not alter the fundamental character of the associated
basic transmission service, are ``adjunct-to-basic'' and are treated as
basic (i.e., telecommunications) services even though they go beyond
mere transmission. Do any of the features and
[[Page 36081]]
functionalities offered by broadband Internet service providers have
relevant similarities to or differences from those that resemble an
information service but are treated differently under Commission
precedent? Similarly, which, if any, of the ``Internet connectivity''
functions listed in the Cable Modem Declaratory Ruling fall within the
management exceptions to the information services category, and why?
60. Some have suggested that the Commission should take account of
the different network ``layers'' that compose the Internet. Are
distinctions between the functional ``layers'' that compose the
Internet relevant and useful for classifying broadband Internet
service? For example, the Commission could distinguish between
physical, logical, and content and application layers, and identify
some of those layers as elements of a telecommunications service and
others as elements of an information service. (As discussed above, the
Commission historically has distinguished between Internet connectivity
functions and Internet applications.) If the Commission adopted this
approach, which of the services offered by wired broadband Internet
service providers should be included in each category? Are the
boundaries of each layer sufficiently clear that such an approach would
be workable in practice? Would such an approach have implications for
services other than broadband Internet service?
61. Competition. We also seek comment on the level of competition
among broadband Internet service providers. The Commission adopted the
unitary information service classification for broadband Internet
services in part ``to encourage facilities-based competition.'' The
Commission envisioned competition among cable operators, telephone
companies, satellite providers, terrestrial wireless providers, and
broadband-over-powerline (BPL) providers. Has the market for broadband
Internet services developed as expected, and, if not, what is the
significance for this proceeding of the market's actual development?
62. Are there other relevant facts or circumstances that bear on
the Commission's application of the statutory definition of
``telecommunications service'' to wired broadband Internet service?
Defining the Telecommunications Service
63. If the Commission were to classify a service provided as part
of the broadband Internet service bundle as a telecommunications
service, it would be necessary to define what is being so classified.
Here we ask commenters to propose approaches to defining the
telecommunications service offered as part of wired broadband Internet
service, assuming that the Commission finds a separate
telecommunications service is being offered today, or must be offered.
64. We have previously defined ``Internet connectivity'' to include
the functions that ``enable [broadband Internet service subscribers] to
transmit data communications to and from the rest of the Internet.''
Identifying a telecommunications service at a similarly high level--for
instance, as the service that provides Internet connectivity--may be
appropriate for this proceeding if a telecommunications service is
classified. Is this approach or some other mechanism appropriate to
give the Internet service provider latitude to define its own
telecommunications service? For instance, would it be desirable for the
Commission to identify only bare minimum characteristics of an Internet
connectivity service? Or is it necessary for the Commission to define
the functionality, elements, or endpoints of Internet connectivity
service? What are the pros and cons of these and other approaches?
Would use of the term ``Internet connectivity service'' in this context
be unduly confusing because the Commission has previously defined that
term to include the function of ``operating or interconnecting with
Internet backbone facilities'' in order to ``enable cable modem service
subscribers to transmit data communications to and from the rest of the
Internet''?
65. Commenters should also identify the particular aspects of
broadband Internet service that do and do not constitute
``transmission, between or among points specified by the user, of
information of the user's choosing, without change in the form or
content of the information as sent and received.'' Does the catalog of
Internet connectivity functions provided in the Cable Modem Declaratory
Ruling include all the functions an end user would need from its
broadband Internet service provider in order to use the Internet? Are
there other connectivity functions the Commission should consider? Can
the Commission draw guidance from other attempts to define the
functionality of an Internet connectivity service, such as the
definition in NECA's DSL Access Service Tariff? In its tariff, NECA
offers a DSL data telecommunications service to end user and Internet
service provider customers. The service ``enables data traffic
generated by a customer-provided modem to be transported to a DSL
Access Service Connection Point using the Telephone Company's local
exchange service facilities.'' The Access Service Connection Point is a
point designated by the telephone company that ``aggregates ADSL Access
Service and/or wireline broadband Internet transmission service data
traffic from and to suitably equipped Telephone Company Serving Wire
Centers.''
Consequences of Classifying Internet Connectivity as a
Telecommunications Service
66. If we were to classify Internet connectivity service as a
telecommunications service and take no further action, that service
would be subject to all requirements of Title II that apply to
telecommunications service or common carrier service. If the Commission
chose, it could provide support for Internet connectivity services
through the Universal Service Fund under section 254. Under section
222, the Commission could ensure that consumers of Internet
connectivity enjoy protections for their private information. Consumers
with disabilities would see greater accessibility of broadband services
and equipment under section 255. And the Commission could protect
consumers and fair competition through application of sections 201,
202, and 208. Would application of all Title II requirements to the
wired broadband Internet connectivity service be consistent with the
approach to broadband Internet service described in part II.A.2, above?
We seek comment on whether these benefits to classifying Internet
connectivity as a telecommunications service would outweigh the costs
of doing so, including the application of numerous regulatory
provisions that the Commission, in its information service
classification orders, determined should not apply. Are there any
elements of our framework that the Commission could not pursue if it
adopted a Title II classification? Under Title II classification what
role, if any, might be played by third party standard setting bodies?
Telecommunications Service Classification and Forbearance
67. In addition to the traditional information service and
telecommunications service approaches discussed above, we identify and
seek comment on a third option for establishing a suitable legal
foundation for broadband Internet and Internet connectivity services.
This third way
[[Page 36082]]
would involve classifying wired broadband Internet connectivity as a
telecommunications service (as suggested above), but simultaneously
forbearing from applying most requirements of Title II to that
connectivity service, save for a small number of provisions.
68. Specifically, if the Commission decided, after appropriate
analysis, to classify wired broadband Internet connectivity (and no
other component of wired broadband Internet service) as a
telecommunications service, it could simultaneously forbear from
applying all but a handful of core statutory provisions--sections 201,
202, 208, and 254--to the service. Two other provisions that have
attracted longstanding and broad support in the broadband context--
sections 222 and 255--might also be implemented for the connectivity
service, perhaps after the Commission provides guidance in subsequent
proceedings as to how they will apply in this context. We seek comment
on this third approach, and whether it would constitute a framework for
broadband Internet service that is fundamentally consistent with what
the Commission, Congress, consumer groups, and industry believed the
Commission could pursue under Title I before the Comcast decision.
Forbearing To Maintain the Deregulatory Status Quo
69. In recognition of the need to tailor the Commission's policies
to evolving markets and technologies, Congress gave the Commission in
1996 the authority and responsibility to forbear from applying
provisions of the Communications Act when certain criteria are met, and
specifically directed the Commission to use this new power to
``encourage the deployment on a reasonable and timely basis of advanced
telecommunications capability to all Americans.'' In typical
forbearance proceedings, a petitioner--usually a telecommunications
service provider--files a petition seeking relief from a provision of
the Act that applies to it. The Commission ``shall'' grant the
requested relief if:
(a) Enforcement of such regulation or provision is not necessary to
ensure that the charges, practices, classifications, or regulations by,
for, or in connection with that telecommunications carrier or
telecommunications service are just and reasonable and are not unjustly
or unreasonably discriminatory;
(b) enforcement of such regulation or provision is not necessary
for the protection of consumers; and
(c) forbearance from applying such provision or regulation is
consistent with the public interest.
In ordinary forbearance proceedings, therefore, the Commission must
make a predictive judgment whether, without enforcement of the
provisions or regulations in question, charges and practices will be
just and reasonable, consumers will be protected, and the public
interest will be served.
70. The forbearance analysis here has a different posture. The
Commission would not be responding to a carrier's request to change the
legal and regulatory framework that currently applies. Rather, it would
be assessing whether to forbear from provisions of the Act that,
because of our information service classification, do not apply at the
time of the analysis. Under section 10, the Commission may forbear on
its own motion. If the statutory criteria are met, the Commission is
compelled to forbear just as if it were responding to a carrier's
petition. In this situation, could the Commission simply observe the
current marketplace for broadband Internet services to determine
whether enforcing the currently inapplicable requirements is or is not
necessary to ensure that charges and practices are just and reasonable
and not unjustly or unreasonably discriminatory, whether application of
the requirements is or is not necessary for the protection of
consumers, and whether applying the requirements is or is not in the
public interest? Section 10 allows the Commission to consider
forbearance from requirements that do not currently apply or may not
apply even in the absence of forbearance.
Identifying the Relevant Telecommunications Service and
Telecommunications Carriers
71. In this part of the Notice we assume, solely for purposes of
framing the forbearance option, that the Commission has decided to
classify the Internet connectivity service underlying broadband
Internet service as a telecommunications service. Section 10 provides
that ``the Commission shall forbear from applying any regulation or any
provision of this chapter to a telecommunications carrier or
telecommunications service, or class of telecommunications carriers or
telecommunications services'' if certain criteria are met. The relevant
``telecommunications service'' would be Internet connectivity service
as the Commission defines it. The ``class of telecommunications
carriers'' at issue would comprise the providers of the Internet
connectivity service identified as a telecommunications service.
72. In this proceeding, however, we do not intend to disrupt the
status quo for incumbent local exchange carriers or other common
carriers that choose to offer their Internet transmission services as
telecommunications services. Nor do we propose to alter the status quo
with regard to the application of section 254(k) and related cost-
allocation rules to these carriers. We therefore seek comment on
excepting from forbearance any carrier that elects to be subject to the
full range of Title II requirements, and on the mechanism that would be
most suitable for a carrier to make such an election.
Defining the Geographic Scope for Analysis
73. Section 10 requires the Commission to forbear from unnecessary
requirements ``in any or some of [carriers'] geographic markets.'' By
its terms section 10 requires no ``particular * * * level of geographic
rigor,'' and the Commission has flexibility to adopt an approach suited
to the circumstances. The Commission decisions classifying broadband
Internet service did not rely on any particular, defined geographic
area. Instead, where those decisions evaluated the state of the
marketplace, they did so ``in view of larger trends.'' The 2005
Wireline Broadband Report and Order granted forbearance on a nationwide
basis. The Commission has adopted a similar approach to evaluating the
broadband marketplace in other forbearance decisions. Given that
backdrop, and the fact that the forbearance discussed here would be
designed to maintain a deregulatory status quo for wired broadband
Internet service that applies across the nation, the same approach may
be warranted here, with the effect that forbearance would be granted or
denied on a nationwide basis. We seek comment on this approach. If
commenters suggest a more granular geographic market as is sometimes
used in other forbearance proceedings, we ask them to address whether
such an approach would be legally required.
Identifying the Provisions of Title II From Which the Commission Would
Forbear
74. The forbearance option contemplates a determination not to
apply all but the small number of provisions of Title II that provide a
solid legal foundation for the Commission to implement its established
broadband policies. In this part, we seek comment on declining to
forbear from the three core provisions of Title II--sections 201, 202,
and 208. We also seek comment on whether we should decline to forbear
[[Page 36083]]
from section 254 in order to ensure that the Commission has clear
authority to pursue universal service goals for broadband services. And
we seek comment on whether we should decline to forbear from two other
provisions--sections 222 and 255--that speak to two other broadband
issues the Commission has believed it can address (customer privacy and
access by persons with disabilities). We further seek comment on
whether forbearing from any of the remaining provisions of Title II is
beyond our forbearance authority or otherwise should be rejected.
75. Exclusions from Forbearance: Sections 201, 202, and 208. The
Commission has never exercised its authority under section 10 to
forbear from these three fundamental provisions of the Act, although it
has been asked to do so on many occasions. In addition to being
consistent with our precedent, a determination not to forbear from
these core provisions would comport with Congress's approach to
commercial mobile radio services (CMRS), such as cell phone services.
In 1993, CMRS services were still nascent, and Congress specified in a
new section 332(c)(1)(A) of the Communications Act that although Title
II applies to CMRS, the Commission may forbear from enforcing any
provision of the title other than sections 201, 202, and 208. After
Congress gave the Commission broader forbearance authority in the
Telecommunications Act of 1996, the Commission considered a petition to
forbear from sections 201 and 202 as applied to certain CMRS services.
The Commission rejected that forbearance request, finding that even in
a competitive market those provisions are critical to protecting
consumers.
76. Applying sections 201 and 202 could provide the Commission
direct statutory authority to protect consumers and promote fair
competition, yet allow the Commission to avoid burdensome regulation.
For example, while CMRS providers are subject to sections 201 and 202,
they do not file tariffs because the Commission forbore from section
203. We seek comment on these issues as well as how to address in any
forbearance analysis the existing agency rules that have been
promulgated under sections 201 and 202.
77. In addition, we seek comment on not forbearing from section 208
and the associated procedural rules. Would the enforcement regime that
would apply if we enforce only section 208 be sufficient if we decide
to forbear from the damages and jurisdictional provisions of sections
206 (carrier liability for damages), 207 (recovery of damages and forum
election), and 209 (damages awards)? Would forbearance from these
additional provisions render enforcement under section 208 procedurally
or substantively deficient, or would section 208 (together with Title V
of the Act) provide the Commission adequate authority to identify and
address unlawful practices involving broadband Internet service?
78. Exclusion from Forbearance: Section 254. Section 254, the
statutory foundation of our universal service programs, requires the
Commission to promote universal service goals, including ``[a]ccess to
advanced telecommunications and information services * * * in all
regions of the Nation.'' In March 2010, a unanimous Commission endorsed
reform of universal service programs to ``encourage targeted investment
in broadband infrastructure and emphasize the importance of broadband
to the future of these programs.'' Reforming universal service to
encompass broadband is also a keystone of the National Broadband Plan.
Our current universal service support programs, including our high-cost
program and our low-income programs, address deployment and income-
related adoption barriers for voice. The Plan recommends that the
Commission provide high-cost and low-income support that ensures that
all households have the ability to subscribe to a high-quality
broadband connection that provides both broadband and voice services.
79. Two subsections of section 254 bear particularly on whether to
forbear from this universal service provision. First, section 254(c)
defines universal service as ``an evolving level of telecommunications
service.'' By not forbearing from section 254(c), the Commission would
retain clear authority to support the availability and adoption of
broadband Internet connectivity service through reformed high-cost and
low-income programs in the Universal Service Fund.
80. Second, section 254(d) requires all providers of
telecommunications service to contribute to the Universal Service Fund
on an equitable and nondiscriminatory basis. Should the Commission
apply the mandatory contribution requirement to broadband Internet
connectivity providers? If so, should we delay implementation of the
contribution obligation, through temporary forbearance or other means,
until the Commission adopts rules governing specifically how broadband
Internet connectivity providers should calculate their contribution
consistent with the requirement that all telecommunications carriers
``contribute[] on an equitable and nondiscriminatory basis,'' possibly
as part of comprehensive Universal Service Fund reform?
81. If commenters suggest that we should forbear from applying the
support provisions of section 254 in the context of broadband Internet
connectivity service, we ask them to provide alternative proposals to
ensure universal availability of broadband Internet connectivity
services, and to assess the legal sustainability of proposed
alternatives. If commenters suggest that we forbear from (or delay)
applying the mandatory contribution provisions of section 254, what
would be the consequences for the Universal Service Fund? The
Commission has statutory authority to assess any provider of interstate
telecommunications if that would serve the public interest. Nothing in
this Notice should be understood to limit the Commission's ability to
exercise this authority during the pendency of this proceeding.
82. Possible Exclusion from Forbearance: Section 222. Section 222
of the Communications Act requires providers of telecommunications
services to protect their customers' confidential information, as well
as proprietary information of other telecommunications service
providers and equipment manufacturers. As discussed above, the
Commission has supported applying this provision in the broadband
context. Section 222 would appear to provide the Commission clear
authority to implement appropriate privacy requirements for broadband
Internet connectivity. We question, however, whether it would be in the
public interest to apply section 222 to broadband Internet connectivity
service immediately. It might be more effective for the Commission to
interpret the specific provisions of section 222, including the
definition of ``customer proprietary network information,'' in the
broadband context before requiring broadband Internet connectivity
providers to comply. Proceeding otherwise could cause confusion and
disparity among broadband Internet connectivity providers, and
confusion for consumers. Compliance with section 222 could also be more
expensive if the provision took effect immediately, and we later
adopted specific rules. On the other hand, most providers are already
subject to privacy requirements, at least for other services they
provide; their costs of immediate compliance with section 222 may not
outweigh the benefit to consumers of quick assurance of their privacy
while using broadband Internet connectivity services. In
[[Page 36084]]
addition, section 631 of the Communications Act requires cable
operators to fulfill certain obligations with respect to consumer
privacy for cable or ``other service[s]'' to which a consumer
subscribes. The term ``other service'' includes ``any wire or radio
communications service provided using any of the facilities of the
cable operator that are used in the provision of cable service.'' How
should the obligations of sections 222 and 631 be reconciled for cable
operators offering broadband Internet service? More broadly, we seek
comment on the application of section 222 to any wired broadband
Internet connectivity service that may be classified as a
telecommunications service, and on whether the public interest would be
served by permitting section 222 to apply in the absence of new
implementing rules. The Commission has previously forborne temporarily
from applying a statutory provision or regulation. In 1994, soon after
Congress authorized the Commission to deregulate wireless services, the
Commission forbore temporarily from requiring or permitting CMRS
providers to file tariffs for interstate access service. And in 2005,
the Commission temporarily forbore from carrier eligibility
requirements for universal service support, to provide victims of
Hurricane Katrina access to wireless phone service.
83. One aspect of retaining the information service classification
for broadband Internet service (other than for the Internet
connectivity telecommunications service that may be offered separately
with broadband Internet service) is that it minimizes interference with
the FTC's ability to enforce the Federal Trade Commission Act's
prohibition of unfair, deceptive, or anticompetitive practices by
broadband Internet service providers. Section 5(a)(1) of the FTC Act
declares to be unlawful all ``[u]nfair methods of competition in or
affecting commerce, and unfair or deceptive acts or practices in or
affecting commerce,'' but section 5(a)(2) of the FTC Act restricts the
FTC's ability to enforce this prohibition with respect to common
carrier activities. We seek comment on how the Commission might use its
authority under section 222 to ensure privacy for users of Internet
connectivity without significantly compromising the FTC's ability to
address privacy issues involving broadband Internet services and
applications.
84. Possible Exclusion from Forbearance: Section 255. Section 255
requires telecommunications service providers to make their services
accessible to individuals with disabilities, unless not reasonably
achievable. As discussed above, the Commission has repeatedly expressed
its intent to apply this requirement in the broadband context.
85. We seek comment on the appropriateness of implementing section
255 to ensure that Americans with disabilities have access to broadband
Internet connectivity services. As with section 222, might it be
appropriate to apply section 255 only after a separate notice-and-
comment proceeding that allows detailed consideration of disabilities-
access issues in the broadband context? We seek comment on
implementation questions and other issues related to the application of
section 255.
86. Scope of Forbearance Generally. We believe that the six
sections we have just discussed--sections 201, 202, 208, 222, 254, and
255--could compose a sufficient set of tools for effecting the
established policy approach and implementing the Commission's goals for
21st Century communications. Are there others that should be added to
this list? Some provisions of Title II relate directly or indirectly to
the effective application and enforcement of the six provisions we have
identified. Section 214, for example, deals primarily with ``Extension
of Lines'' yet contains section 214(e), which provides the framework
for determining which carriers are eligible to participate in universal
service support programs. Similarly, section 251(a)(2) directs
telecommunications carriers ``not to install network features,
functions, or capabilities that do not comply with the guidelines and
standards established pursuant to section 255,'' and section 225
establishes the telecommunications relay services program. Is
application of these or any other provisions of Title II required to
allow effective implementation and enforcement of the six provisions
identified above? If so, should the Commission exempt such provisions
from forbearance for administrative reasons, if this third approach to
classification is adopted?
87. Are there provisions of Title II from which we lack authority
to forbear? Section 10(a) directs the Commission to forbear from
applying regulations or provisions of the Communications Act to
telecommunications carriers or services in those instances where the
Commission determines that the particular provision is unnecessary to
ensure that carrier ``charges, practices, classifications, or
regulations * * * are just and reasonable and are not unjustly or
unreasonably discriminatory;'' enforcement of such regulation is ``not
necessary for the protection of consumers;'' and forbearance is
consistent with the public interest. We ask whether section 10 provides
authority to forbear from provisions of the statute that do not
directly impose obligations on carriers. For example, section 224
provides the framework for the Commission's regulation of pole
attachments, including the rates therefor. Does section 10 provide the
Commission authority to forbear from section 224 insofar as it imposes
rate-related obligations on the Commission and utilities that own
poles, rather than on telecommunications carriers or telecommunications
services?
88. Similarly, section 253 permits the Commission to preempt state
regulations that prohibit the provision of telecommunications services.
Does section 10 provide the Commission authority to forbear from
section 253, which does not impose obligations on telecommunications
carriers? If the Commission were to forbear from section 253, how would
the Commission's general authority to preempt inconsistent state
requirements be affected?
89. Congress created the Commission in part ``for the purpose of
the national defense, [and] for the purpose of promoting safety of life
and property through the use of wire and radio communication.'' Would
it be consistent with the Commission's mission with respect to
promoting safety of life and property, and consumer protection
generally, to forbear from the portions of section 214(a) that address
discontinuance, reduction, or impairment of service? Would it be
consistent with our mission to forbear from section 214(d), which
allows the Commission to require a carrier ``to provide itself with
adequate facilities for the expeditious and efficient performance of
its service''; or section 218, which permits the Commission to
``inquire into the management of the business of all carriers subject
to this Act''? Does section 10 provide authority to forbear from these
provisions? Should the Commission exclude them from forbearance so it
may proceed with, for example, cybersecurity or data gathering
initiatives, or would authority under sections 201 and 202 (or other
provisions) be sufficient? How would forbearance from these provisions
affect the Commission's ability to promote adequate service to
underserved communities?
90. Also with regard to our national defense and homeland security
mission, we note that section 229 directs the Commission to implement
the provisions of the Communications
[[Page 36085]]
Assistance for Law Enforcement Act (CALEA). CALEA is a separate statute
that requires ``telecommunications carriers'' to meet certain
assistance capability requirements in support of electronic
surveillance. The Commission has previously found that CALEA's
definition of ``telecommunications carrier'' is broader than the
definition of ``telecommunications carrier'' in the Communications Act.
All service providers that are ``telecommunications carriers'' under
the Communications Act are also ``telecommunications carriers'' subject
to CALEA, and some providers--including facilities-based broadband
Internet access providers--are subject to CALEA even if they are not
``telecommunications carriers'' as defined in the Communications Act.
Specifically, the Commission held in 2005 that ``facilities-based
providers of any type of broadband Internet access service, including
but not limited to wireline, cable modem, satellite, wireless, fixed
wireless, and broadband access via powerline are subject to CALEA.''
Thus, it appears that regardless of whether we maintain the current
statutory classification for broadband Internet service or classify
Internet connectivity (or some other service) as a telecommunications
service, CALEA will continue to apply to these providers. We seek
comment on this analysis. In addition, as we do with regard to the
sections described just above, we seek comment on whether section 10
would provide authority to forbear from section 229, and on whether
forbearance from application of section 229 would be consistent with
the purposes for which CALEA was enacted and the public interest.
Finally, we emphasize that section 10 does not provide the Commission
authority to forbear from provisions of CALEA or any other statute
other than the Communications Act.
91. Section 257(c) requires the Commission to make periodic reports
to Congress concerning the elimination of previously identified
barriers to market entry by entrepreneurs and other small businesses.
This obligation applies to ``the provision and ownership of
telecommunications and information services'' and thus applies
regardless of the legal classification of broadband Internet service
and broadband Internet connectivity service. It thus would appear that
none of the three alternative approaches suggested here would affect
the Commission's duty to make the mandated reports. Nor, given the
importance of lowering barriers to market entry, do we contemplate any
circumstance in which it would be sound policy to cease making the
reports. We seek comment on these issues and on how best to ensure that
the obligation of section 257(c) is preserved in this context.
92. We further seek comment on whether there are provisions of
Title II that would require interpretation even after forbearance. For
example, would forbearance from section 203 mean that carriers may not
file tariffs even if they want to, or just that they are not required
to do so? Would the Commission's review of transactions involving
providers of broadband Internet connectivity service be affected if the
Commission forbore from applying section 214?
93. We also seek comment on whether there are approaches superior
or complementary to forbearance that the Commission should consider as
means of easing regulatory burdens. For example, in the past the
Commission has ``streamlined'' the statutory procedures that apply to
non-dominant carriers, and has granted blanket authority to all
carriers under section 214 to provide domestic interstate services and
to construct, acquire, or operate any domestic transmission line. Is
any similar approach appropriate here?
94. Finally, we seek comment on the role of third party standard
setting bodies if the Commission were to adopt one of the deregulatory
approaches described here.
Application of the Statutory Forbearance Criteria
95. Charges, Practices, Classifications, and Regulations. In 2002,
when the Commission decided to classify cable modem service as an
information service, only 12 percent of American adults had broadband
at home. Now nearly two-thirds of American adults use broadband at
home. In just the last two years, home broadband use has grown more
than 25 percent. The quality and availability of broadband services
continue to improve, with cable and telephone companies investing about
$20 billion in wireline broadband capital expenditures in 2008 and
about $18 billion in 2009. As described in the National Broadband Plan,
``[t]op advertised speeds available from broadband providers have
increased in the past few years. Additionally, typical advertised
download speeds to which consumers subscribe have grown approximately
20% annually for the last 10 years.''
96. Still, a number of reported incidents suggest there is a role
for the Commission. Comcast's secret disruption of its customers' peer-
to-peer communications, which the Commission determined to be
unjustified, is one example. There have been recent reports involving:
AT&T's alleged failure to deliver DSL service at the speeds promised;
allegations that although RCN promised subscribers ``fast and
uncapped'' broadband, it delayed or blocked peer-to-peer file transfers
without users' knowledge or consent; and Windstream's redirection of
subscribers who used the default search function in the Firefox web
browser to a Windstream ``landing page.'' Furthermore, legislative
developments described above suggest that Congress is not satisfied
with the pace of broadband deployment, adoption, and utilization.
97. We seek comment on whether, in light of the current charges,
practices, classifications, and regulations of broadband Internet
connectivity service providers, it would be consistent with section
10(a)(1) for the Commission to forbear from all provisions of Title II
except the six identified provisions. If we found on the record
developed in response to this Notice that the marketplace for broadband
Internet connectivity services is operating sufficiently well with
regard to competition and consumers' interests, then retaining only the
authority in sections 201, 202, and 208; reforming universal service
under section 254; and continuing to enforce the privacy and access
provisions of sections 222 and 255 could be sufficient to address
current and foreseeable future concerns.
98. Protection of Consumers and the Public Interest. Section 10(b)
directs the Commission, in making its public interest analysis, to
``consider whether forbearance from enforcing the provision or
regulation will promote competitive market conditions.'' As discussed
above, the goals of any action to classify broadband Internet
connectivity as a telecommunications service would include preserving
the Commission's ability to step in when necessary to protect consumers
and fair competition, while generally refraining from regulation where
possible. Further, the Commission has tools to promote competition for
broadband Internet services that would be unaffected by the forbearance
proposal discussed here. We seek comment on this element of the
forbearance test.
Maintaining Forbearance Decisions
99. We seek comment on whether, if we forbore from applying those
provisions of Title II that go beyond minimally intrusive Commission
oversight, that decision would likely
[[Page 36086]]
endure. Section 10 allows the Commission to revisit a decision to
forbear. Normally, to depart from a prior decision, an agency may
simply acknowledge that it is doing so and provide a rational
explanation for the change, which may or may not need to be more
detailed than the explanation for the original decision. The agency
``need not demonstrate to a court's satisfaction that the reasons for
the new policy are better than the reasons for the old one.'' Section
10, though, requires the Commission to forbear if the statutory
criteria are met. Thus, to reverse a forbearance decision, the
Commission must find that at least one of the criteria is no longer met
with regard to a particular statutory provision. That determination
would be subject to judicial review, and the Supreme Court has stated
that an agency must ``provide a more detailed justification than what
would suffice for a new policy created on a blank slate'' in instances
where, for example, ``its new policy rests upon factual findings that
contradict those which underlay its prior policy; or when its prior
policy has engendered serious reliance interests that must be taken
into account.'' Reversal of forbearance also might be in arguable
tension with section 706(a) of the 1996 Act, which directs the
Commission to ``encourage the deployment on a reasonable and timely
basis of advanced telecommunications capability to all Americans * * *
by utilizing, in a manner consistent with the public interest,
convenience, and necessity, * * * regulatory forbearance.'' We seek
comment on the Commission's authority to reverse a forbearance decision
concerning broadband Internet connectivity service. We also seek
comment on what provisions, if any, could appropriately be included in
a forbearance order to establish a heightened standard for justifying
future ``unforbearance.''
100. If the Commission were to elect the option of classifying
Internet connectivity as a telecommunications service but forbearing
from most of Title II, then a reviewing court could in theory uphold
the classification determination but vacate the accompanying
forbearance in whole or in part. In that situation, the Commission
could maintain the classification of broadband Internet connectivity
service as telecommunications service and allow the relevant provisions
of Title II, which the court restored, to apply. We seek comment on any
lawful mechanisms that (assuming adoption of the third classification
option) could be utilized to address this theoretical situation, even
if that means the Commission would not, in the post-litigation
situation just described, ultimately maintain the classification of
Internet connectivity as a telecommunications service.
Effective Dates
101. If the Commission decided to alter its current approach to
Internet connectivity service, affected providers might need time to
adjust to any new requirements. To reflect this, the Commission could
delay the effective date of a classification (or classification and
forbearance) decision for 180 days after release, or another suitable
period. Moreover, as discussed above, certain provisions of Title II,
such as sections 222, 254(d), and 255, could be phased-in on an even
longer timetable. We seek comment on the effective date the Commission
should adopt for a classification decision under one of the approaches
proposed here, or an alternative approach identified by the commenter.
Terrestrial Wireless and Satellite Services
102. The Commission currently classifies broadband Internet service
solely as an information service regardless of whether it is provided
over cable facilities, wireline facilities, wireless facilities, or
power lines. At the same time, the Commission has in the past taken a
deliberate approach to extending its classification framework. In
particular, though the Commission had classified all cable modem and
wireline Internet access services as information services by 2005, it
was not until 2007 that it extended that classification to wireless
broadband Internet services, even though the first 3G networks went
into service in 2003.
103. We seek comment on which of the three legal frameworks
specifically discussed in this Notice, or what alternate framework,
would best support the Commission's policy goals for wireless
broadband. In addition, as the Commission recently noted in the Open
Internet NPRM, ``there are technological, structural, consumer usage,
and historical differences between mobile wireless and wireline/cable
networks.'' We seek comment on whether these differences are relevant
to the Commission's statutory approach to terrestrial wireless and
satellite-based broadband Internet services. Do consumers today view
wireless broadband as a substitute for wired services? How are
terrestrial wireless and satellite Internet services purchased,
provided, and perceived?
104. Several provisions of Title III of the Communications Act
provide the Commission authority to impose on spectrum licensees
obligations that are in the public interest. For example, section 301
provides the Commission authority to regulate ``radio communications''
and ``transmission of energy by radio.'' Under section 303, the
Commission has the authority to establish operational obligations for
licensees that further the goals and requirements of the Act if the
obligations are in the ``public convenience, interest, or necessity''
and not inconsistent with other provisions of law. Section 303 also
authorizes the Commission, subject to what the ``public interest,
convenience, or necessity requires,'' to ``[p]rescribe the nature of
the service to be rendered by each class of licensed stations and each
station within any class.'' Section 307(a) likewise authorizes the
issuance of licenses ``if public convenience, interest, or necessity
will be served thereby.'' Section 316 provides a similar test for new
conditions on existing licenses, authorizing such modifications if ``in
the judgment of the Commission such action will promote the public
interest, convenience, and necessity.'' On the other hand, Title III
provides the Commission no express authority to extend universal
service to wireless broadband Internet services. We seek comment on
whether these or other technical, market, or legal considerations
justify different classification of wireless and wired broadband
Internet services. We also seek comment on whether our approach to
classification of non-facilities-based Internet service providers
should be different in the wireless context, or the same as in the
wired context.
105. In addition, section 332 sets forth various provisions
concerning the regulatory treatment of mobile wireless service.
Sections 332(c)(1) and (c)(3), in particular, require that CMRS
providers be regulated as common carriers under Title II of the Act. To
what extent should section 332 of the Act affect our classification of
wireless broadband Internet services? Section 332(c)(1) gives the
Commission the authority to specify certain provisions of Title II as
inapplicable to CMRS providers. If the Commission were to take the
third way described above in the wireless broadband context, could it
and should it apply section 332(c)(1) as well as section 10 in its
forbearance analysis? We also seek comment on whether the Commission
would have reason to apply sections 201 and 202 differently
[[Page 36087]]
to wireless and wired broadband Internet services.
106. We also ask commenters to address whether, if the Commission
were to alter its present approach to broadband Internet service, it
would be preferable for the Commission to address wireless services at
the same time that it addresses wired services, or whether there are
reasons for the Commission to defer a decision on classification of
non-wired broadband Internet services (and any associated forbearance
if a wireless broadband telecommunications service is identified).
Non-Facilities-Based Internet Service Providers
107. In 1998, the Commission addressed non-facilities-based
Internet service providers and concluded that they provided only
information services. In Brand X, Justice Scalia stated in his dissent
that non-facilities-based Internet service providers using telephone
lines to provide DSL service stand in a different position in the eyes
of the consumer than the provider of the physical connection. Some
industry members have suggested, however, that providers of Internet
connectivity could avoid compliance with consumer protection measures
by relying on non-facilities-based affiliates to offer retail broadband
Internet service. We seek comment on what policy goals we should have
for non-facilities-based Internet service providers, and what legal
foundation for non-facilities-based Internet service providers can best
support effective implementation of those goals.
Internet Backbone Services, Content Delivery Networks, and Other
Services
108. The focus of this proceeding is limited to the classification
of broadband Internet service. We remain cognizant that, under the Act,
all information services are provided ``via telecommunications,'' and
therefore the use of telecommunications does not, on its own, warrant
the identification of a separate telecommunications service component.
For example, we do not intend to address in this proceeding the
classification of information services such as e-mail hosting, web-
based content and applications, voicemail, interactive menu services,
video conferencing, cloud computing, or any other offering aside from
broadband Internet service. Services that utilize telecommunications to
afford access to particular stored content, such as content delivery
networks, also are outside the scope of this proceeding. Nor do we
intend here to address or disturb our treatment of services that are
not sold by facilities-based Internet service providers to end users in
the retail market, including, for example, Internet backbone
connectivity arrangements. In short, the Commission proposes not to
change its treatment of services that fall outside a commonsense
definition of broadband Internet service. We seek comment on whether
any of the three legal approaches described in this Notice would affect
these services directly or indirectly, and how we should factor that
into our decision-making about the treatment of broadband Internet
service.
109. In a separate proceeding, the Commission has asked for public
comment on the treatment of other services (including Internet-
Protocol-based voice and subscription video services) that may be
provided over the same facilities used to provide broadband Internet
service to consumers, but that have not been classified by the
Commission. The Commission has described these as ``managed'' or
``specialized'' services, and recognized ``that these managed or
specialized services may differ from broadband Internet services in
ways that recommend a different policy approach, and it may be
inappropriate to apply the rules proposed here to managed or
specialized services.'' We do not intend to address the classification
or treatment of these services in this proceeding. We seek comment on
whether any of the three legal approaches identified in this Notice
would affect these services directly or indirectly, and how we should
factor that into our decision-making about the treatment of Internet
connectivity service.
State and Local Regulation of Broadband Internet and Internet
Connectivity Services
110. We also ask commenters to address the implications for state
and local regulation that would arise from the three proposals
described above. Under each of the three approaches, what would be the
limits on the states' or localities' authority to impose requirements
on broadband Internet service and broadband Internet connectivity
service?
111. We anticipate that if a state were to impose requirements on
broadband Internet connectivity service or broadband Internet service
that are contrary to a Commission decision not to apply similar
requirements, we would have authority under the Communications Act and
the Supremacy Clause of the United States Constitution (Article III,
section 2) to preempt those state requirements. In addition, section
10(e) provides that ``[a] State commission may not continue to apply or
enforce any provision of this Act that the Commission has determined to
forbear from applying.'' We seek comment on the application of these
provisions in the context of broadband Internet service and broadband
Internet connectivity service, the states' role in the broadband
marketplace, and how our decision to apply or not apply section 253
could relate to this authority.
Related Actions
112. We seek comment on whether there are actions we can and should
take outside the proceeding this Notice initiates to implement the
established policy approach to broadband Internet service. As one
example, the Commission could decline to pursue the ``open access''
policies for cable modem service on which the Commission sought comment
in 2002 when it decided to classify cable modem service as a single
information service. We seek comment on terminating the docket
initiated by the notice of proposed rulemaking that accompanied the
Cable Modem Declaratory Ruling, and we invite additional proposals.
Procedural Matters
Paperwork Reduction Act
113. This document does not contain proposed information
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. In addition, therefore, it does not contain any new
or modified ``information collection burden for small business concerns
with fewer than 25 employees,'' pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 47 U.S.C.
3506(c)(4).
Ex Parte Presentations
114. The inquiry this Notice initiates shall be treated as a
``permit-but-disclose'' proceeding in accordance with the Commission's
ex parte rules. Persons making oral ex parte presentations are reminded
that memoranda summarizing the presentations must contain summaries of
the substance of the presentations and not merely a listing of the
subjects discussed. More than a one or two sentence description of the
views and arguments presented generally is required. Other requirements
pertaining to oral and written presentations are set forth in Sec.
1.1206(b) of the Commission's rules.
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Ordering Clause
115. Accordingly, it is ordered that, pursuant to the authority
contained in sections 4(i), 4(j), 10, 218, 303(b), 303(r), and 403 of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j),
160, 218, 303(b), 303(r), and 403, this Notice of Inquiry is adopted.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2010-15349 Filed 6-23-10; 8:45 am]
BILLING CODE 6712-01-P