At its May
18 public meeting, the FCC voted to propose rolling back public utility
regulation of broadband Internet access services. The FCC’s Restoring Internet Freedom proposal
argues that broadband Internet access service fits within the statutory
definition of a lightly-regulated Title I “information service.” A May 8 U.S.
District Court decision in Charter
Advanced Services v. Lange (2017) supports the legal rationale for the FCC
to define Internet access service as an “information service.”
The most
egregious aspect of the FCC’s Title II
Order (2015) is that it imposed public utility regulation on Internet
access service providers. It did this by force-fitting Internet access into the
Telecommunications Act of 1996’s definition of a Title II “telecommunications
service.” To achieve that strained result, the order excluded Internet access
service from the 1996 Act’s definition of a Title I “information service.
By
reclassifying broadband service under Title I, the Restoring Internet Freedom proposal would return to an accurate reading
of the 1996 Act. Quoting Title I’s definition of an information service, the
FCC’s proposal states:
We believe that Internet service providers offer the “capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” Whether posting on social media or drafting a blog, a broadband Internet user is able to generate and make available information online. Whether reading a newspaper’s website or browsing the results from a search engine, a broadband Internet user is able to acquire and retrieve information online. Whether it’s an address book or a grocery list, a broadband Internet user is able to store and utilize information online. Whether uploading filtered photographs or translating text into a foreign language, a broadband Internet user is able to transform and process information online. In short, broadband Internet access service appears to offer its users the “capability” to perform each and every one of the functions listed in the definition—and accordingly appears to be an information service by definition.
The Charter Advanced Services v. Lange
decision is important because it supports the FCC’s reasoning that broadband Internet
access service fits within the definition of a Title I information service in at
least two key respects.
First, the
U.S. District Court’s decision recognized that an offering’s performance of one
function listed under Title I – transforming – sufficed to render it an
“information service.” Judge Susan
Richard Nelson of the U.S. District Court for the District of Minnesota ruled
that Charter’s Spectrum Voice offering “engages in net protocol conversion, and
that this feature renders it an ‘information service’ under applicable legal
and administrative precedent.” According to Judge Nelson: “In this specific factual context, the touchstone of the
information services inquiry is whether Spectrum Voice acts on the customer’s
information – here a phone call – in such a way as to ‘transform’ that
information… By altering the protocol in which that information is transmitted,
Charter Advanced’s service clearly does so.”
The
District Court’s decision thus supports the Restoring
Internet Freedom proposal’s rationale insofar as “transforming” functionalities
bring an offering within the scope of Title I’s information services definition.
Of course, broadband Internet access service offerings transform the form or
content of users’ information in many ways beyond voice offerings. As the Restoring Internet Freedom proposal
observes, ISPs “routinely change the form or content of information sent over
their networks – for example, by using firewalls to block harmful content or
using protocol processing to interweave IPv4 and IPv6 networks.” Indeed,
broadband services generate, acquire, store, transform, process, retrieve,
utilize, and make information available to users in myriad ways beyond those
briefly identified in the FCC’s proposal.
Second,
the U.S. District Court’s decision emphasized that the information service
definition is keyed to the provision of the “capability” of performing certain
functions – regardless of whether those functions are actually performed in
every instance. So, in Charter Advanced Services v. Lange, it
was “the capability to convert calls” between Internet Protocol (IP) and Time
Division Mutiplexing (TDM) that brought Charter Advanced within the meaning of
Title I. As Judge Nelson explained:
[T]he mere fact that Spectrum Voice does not always involve protocol transformation does not render the service any less of an ‘offering’ of information services. At no point does the Telecommunications Act suggest or require that a customer use an information service’s transformative features all the time. Indeed, the very language of the definition of an ‘information service,’—which merely mandates that there be an ‘offering of a capability’ to, inter alia, transform information—belies such a conclusion.
Similarly,
the Restoring Internet Freedom proposal
emphasizes that “[t]he definition of “information service” speaks to the ‘capability’
to perform certain functions.” That is, an information service need not
actually transform or perform other delineated Title I functions for broadband Internet
access users in every instance. Rather, the proposal recognizes that “offering
Internet access is precisely what makes the service capable of ‘generating,
acquiring, storing, transforming, processing, retrieving, utilizing, or making
available information’ to consumers.”
The Restoring Internet Freedom proposal follows
the FCC’s Cable Modem Order (2002),
which “recognized that broadband Internet users often used services from third
parties.” The Cable Modem Order –
which declared cable modem service an
information service “regardless of whether subscribers use all of the functions
provided as part of a service” – was affirmed by the U.S. Supreme Court in NCTA v. Brand X (2005).
Conversely,
the Restoring Internet Freedom proposal
rejects the Title II Order’s
effective disregard of functional “capability” as part of the definition of an
“information service.” The Title II Order
concluded that consumers use broadband service “primarily as a conduit” for
accessing third-party content, applications, and services. This is not a
conclusion on which there is anything like universal agreement. But, in any
event, even if true, it is by virtue of being an Internet “conduit” that
broadband Internet access service is capable of ‘generating, acquiring,
storing, transforming, processing, retrieving, utilizing, or making available
information’ to consumers” – in an offering in which the conduit and
information processing elements are inextricably linked.
The holding
in Charter Advanced Services v. Lange is
specific to IP-to-TDM voice offerings. Of course, the District Court’s decision
does not alter the Title II Order or
compel the FCC to make a Title I reclassification decision. Nonetheless, the court’s
focus on the functional capabilities in the “information service” definition in
the 1996 Act supports the argument for Title I classification of broadband Internet
access service in the Restoring Internet
Freedom proposal.
Classifying
broadband Internet access service as an “information service” under Title I will
restore a proper understanding of the statute and reflect its intent that
Internet service providers be subject to light-touch regulatory treatment.
[*This post was updated to correct the case name of one of the Defendants 05/22/17 2:45pm EST]
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