Legal Framework for Broadband

Internet Access
Notice of Inquiry

June 17, 2010

 OUR MISSION
IN THE BROADBAND ERA
Congress created this Commission…
–
so as to make available, so far as possible, to all the people
of the United States
–
a rapid, efficient, Nation-wide, and world-wide
communication service
–
with adequate facilities
–
at reasonable charges
–
for the purpose of the national defense, and promoting
safety of life and property
Communications Act § 1
make available, so far as possible, to all the
people of the United States . . .
“Every American should have a meaningful opportunity
to benefit from the broadband communications era . . . .
The nearly $9 billion Universal Service Fund . . . should be
comprehensively reformed to . . . encourage targeted
investment in broadband infrastructure, and emphasize
the importance of broadband to the future of these
programs.”
Joint Statement on Broadband, FCC 10-42 (Mar. 16, 2010)
make available, so far as possible, to all the
people of the United States . . .

“[W]e will exercise our Title I ancillary

jurisdiction to ensure achievement of
important policy goals of section 255
[regarding access for persons with
disabilities].”

DSL Order and NPRM, 20 FCC Rcd at 14920-21, ¶ 123 (2005)

for the purpose of the national defense, [and]
promoting safety of life and property . . .

“[N]etwork reliability, emergency

preparedness, national security, and law
enforcement requirements would each be
reasonably ancillary to the Commission’s
obligation [under section 1].”
DSL Order and NPRM, 20 FCC Rcd at 14914, ¶ 110
 Privacy

“Consumers’ privacy needs are no less

important when consumers communicate
over and use broadband Internet access than
when they rely on telecommunications
services.”

DSL Order and NPRM, 20 FCC Rcd at 14930, ¶ 148

 Comcast Corp. v. FCC
(D.C. Cir. Apr. 6, 2010)
Casts serious doubt on the
Commission’s ability to achieve
these goals under its chosen
legal framework.
Goal of this Notice of Inquiry
A solid legal foundation for
continuing Commission policies
that promote investment,
innovation, and competition
and protect consumers.
THE ROAD TO THIS
NOTICE OF INQUIRY
 Steps Toward A Legal Framework
1960s–1990s Computer Inquiries
1996 Telecommunications Act of 1996
1998 Report to Congress (Stevens Report)
2000 AT&T Corp. v. City of Portland (9th Circuit)
2002 Cable Modem Declaratory Ruling and NPRM
2005 NCTA v. Brand X Internet Services (Supreme Court)
2005 DSL Order and NPRM
2006 Broadband Over Power Lines Order
2007 Wireless Broadband Order
Pre-Comcast: FCC Has Responsibility & Title I Authority
“If there are competitive problems, we will step in. If consumers are being denied access to
products and services that they want, we can address that as an enforcement matter.”
-- Chairman William Kennard (1999)

“The Commission is not left powerless to protect the public interest by classifying cable
modem service as an information service. Congress invested the Commission with ample
authority under Title I . . . .  There is no basis to conclude that Title I is inadequate to strike
the right regulatory balance.”
-- Chairman Michael Powell (2002)
“As the expert communications agency, it was appropriate for the Commission to adopt,
and it is the Commission’s role to enforce, this Internet Policy Statement. In fact, the
Supreme Court in its Brand X decision specifically recognized the Commission’s ancillary
authority to impose regulations as necessary to protect broadband internet access.”
-- Chairman Kevin Martin (2008)
2002: Cable Open Access NPRM
“[W]e now seek comment on whether the
Commission should exercise its Title I authority
here with regard to the provision of cable
modem service.”

Cable Modem Declaratory Ruling and NPRM, 17 FCC Rcd at 4842, ¶ 77

(2002)
2002 → 2005: Broadband Consumer Protection NPRM
“We have a duty to ensure that consumer protection objectives in
the Act are met as the industry shifts from narrowband to
broadband services. Through this Notice, we thus seek to develop a
framework for consumer protection in the broadband age . . . .

[O]ur ancillary jurisdiction under Title I . . . is ample to accomplish

the consumer protection goals we identify below, and we will not
hesitate to exercise it.”

DSL Order and NPRM, 20 FCC Rcd at 14929-30, ¶ 146

2002 → 2005 → 2010: Comcast v. FCC

2002 The
→ 2005 → 2010:
Commission Comcast
may exercisev.[its]
FCC“ancillary”
 Comcast
authority only if degraded
secretly it demonstrates that its action—
its broadband customers’
here barring
lawful traffic Comcast from interfering with its
customers' use of peer-to-peer networking
 Commission
applications—is “reasonably
ordered Comcast ancillary to its
to disclose thepolicies
...
effective performance of its statutorily
 Comcast
mandated responsibilities.”
challenged the order. . .  The Commission
in federal court
has failed to make that showing.
 
 D.C. Circuit held the Commission went too far when it
600 F.3d 642, 644 (D.C. Cir. 2010)
relied on its “ancillary authority”
 Supreme Court: FCC May Interpret the Act
Supreme Court: FCC Has Broad Discretion to Classify
Broadband
[A]mbiguities in statutes within Internet
an agency's Service
jurisdiction to administer are delegations of
authority to the agency to fill the statutory gap in reasonable fashion.  Filling these
“If a. . .
gaps statute is ambiguous,
involves and
difficult policy if the that
choices implementing
agencies are agency's construction
better equipped is than
to make
reasonable, Chevron requires
courts. . . .  If a statute is ambiguous, a federal
and if court to accept the
the implementing agency's
agency's construction
construction is
of the statute, even if the agency's
reasonable, Chevron requires a federalreading
court todiffers
accept from what the
the agency's court believes
construction of theis
statute,
the best even if the agency's
statutory reading . . .
interpretation differs
.” from what the court believes is the best
statutory interpretation. . . .  The Chevron framework governs our review of the
Commission's construction. . .
“[T]he [Communications Act].   fails unambiguously to classify the
telecommunications component of cable modem service as a distinct offering. 
[T]he
Thisstatute
leaves fails unambiguously
federal to classify policy
telecommunications the telecommunications component
in this technical and complexof cable
area
modem service
to be set as aCommission
by the distinct offering. 
. . . .” This leaves federal telecommunications policy in
this technical and complex area to be set by the Commission . .  .
                                                        NCTA v. Brand X, 545 U.S. 967, 980, 992 (2005)
                                                        NCTA v. Brand X, 545 U.S. 967, 980, 992 (2005)
 Supreme Court: FCC May Interpret the Act
[A]mbiguitiesSupreme
in statutes Court: FCC Has
within an agency's A Duty
jurisdiction to Reassess
to administer are delegations of
authority to the agency to fill the statutory gap in reasonable fashion.  Filling these
“An. . .
gaps initial agency
involves interpretation
difficult policy choicesis not
thatinstantly
agenciescarved in stone. 
are better On the
equipped contrary,
to make than
the agency
courts. . . .  If a. statute
. . mustisconsider
ambiguous, varying
and ifinterpretations
the implementing andagency's
the wisdom of its is
construction
reasonable, Chevron requires
policy on a continuing basisa .federal . . .” court to accept the agency's construction of the
statute, even if the agency's reading differs from what the court believes is the best
Brand X, 545 U.S. at 981 (quoting Chevron)
statutory interpretation. . . .  The Chevron framework governs our review of the
The agency “need
Commission's not demonstrate
construction. . . .   to a court's satisfaction that the reasons for
the new policy are better than the reasons for the old one; it suffices that the
[T]he
newstatute fails
policy is unambiguously
permissible undertothe
classify the telecommunications
statute, that there are good component
reasons forof
it,cable
modem service
and that as a distinct offering. 
the agency believes it This
to be leaveswhich
better, federal telecommunications
the conscious change policy
of in
this technical
course and complex
adequately area to be set by the Commission . .  .
indicates.”
FCC v. Fox Television
                                                        NCTA v. BrandStations, 129967,
X, 545 U.S. S. Ct. 1800,
980, 992 1811
(2005)(2009)
THE NOTICE OF INQUIRY
 Information Gathering
Seeks comment on any and all legal approaches to Broadband
Internet services, including:
1) Title I: Maintain current legal framework

2) Title II: Apply all regulations applied to telephone

networks

3) Third Way
Inquiry does not involve Internet content, or other
applications or services.
 Title I Option
 Maintain classification as unitary information service

 Rely on ancillary authority

• Link broadband policies to traditional telephone and

broadcast/cable services

 Develop additional authority from Act

 Title I Option
 NOI seeks comment on how to realize particular goals:
• Universal service
• Privacy
• Access for individuals with disabilities
• Public safety and homeland security
• Addressing harmful practices by ISPs
• Other approaches to oversight
(e.g., third-party standard setting)
 Title II Option
 Refresh the factual record on broadband Internet service

 Recognize broadband Internet connectivity as a

telecommunications service

 Apply all Title II provisions

 Title II Option
 NOI seeks comment on:

• Current facts in the broadband marketplace

• How to define the telecommunications service

• Consequences of this approach

 Third Way
 Modeled on successful “Regulatory Treatment of Mobile
Services” (Communications Act § 332(c))
 Third Way
 Modeled on successful “Regulatory Treatment of Mobile
Services” (Communications Act § 332(c))
Annualized Wireless Industry Survey Results, 1993-2009

300,000,000

250,000,000
Total Connections

200,000,000

150,000,000

100,000,000

50,000,000

0
07
93

95

97

99

01

03

05

09
20
19

19

19

19

20

20

20

20

Year Source: CTIA

 Third Way
 Modeled on successful “Regulatory Treatment of Mobile
Services” (Communications Act § 332(c))
• Classify broadband Internet connectivity as a
telecommunications service (as currently offered by 840
local telephone companies)

• Forbear on a nationwide basis from all but a small

number of core Title II provisions

• Lock-in forbearance
 Third Way
 NOI seeks comment on:

• Provisions from which Commission should and should

not forbear

• Application of statutory forbearance criteria

• Maintaining forbearance decisions

 Other Questions
 How should Commission treat wireless broadband Internet
services?
 How should Commission treat non-facilities-based ISPs?
 What are implications of each approach for state and local
regulation?
 If the Commission adopts a new approach, what should be
the effective date?
 Should Commission close its cable open access proceeding?
 Comment Cycle
 APA does not require notice and comment for
statutory interpretations

 NOI nevertheless seeks public input:

Initial Comments: July 15, 2010

Reply Comments: August 12, 2010

 Input also accepted via new media