According to this story, FCC Chairman Kevin Martin told the Senate he has circulated a Notice of Proposed Rulemaking to classify broadband via wireless as an “information service.”
This might at first seem no big deal. After all, in the wake of the Brand X decision, the FCC has moved to declare broadband an “information service” for DSL and cable and, more recently, for broadband over power lines (BPL). So, while I may not be happy with using regulatory classifications to achieve back-door deregulation, what makes wireless services different?
The answer has to do with the peculiar way the Communiations Act works, and the physical reality that use of the electromagnetic spectrum really is different than laying a fiber line. True, “technological neutrality” is one of the great regulatory shibboleths these days, even if it does to reality what Yiphtach (Jeptha) did to the people of Ephriam. But the law and reality do matter sometimes. Like here.
I must give fair warning that the analysis below hinges on what will appear to non-lawyers an incredibly bizzare and artificial distinction with no apparent difference in immediate outcome. But among lawyers, this is like mistaking a Satmar Chassid for a Hesder bachur.
Some analysis below.
You can get the necessary background from my network neutrality primer. Briefly, the Communications Act is divided into “Titles.” Title I is general authority over “all communiations by wireless or wire” and the general structure of the Commission. Title II deals with Telecommunications Services by wire. Title III deals with use of “radio” (spectrum, including things like cell phones and satellite television). Titles IV and V are not relevant here. Title VI addresses regulation of cable services.
Back in Brand X the question was whether the Comunications Act required the FCC to define broadband over cable as a “Telecommunications Service” regulated under Title II. The Supreme Court held that the FCC had the power to clasify broadband over cable (the service at issue) and, in the future, broadband over DSL, as an “infromation service” subject to the “ancillary jurisdiction” of Title I rather than the mandatory rules governing things like interconnection and common carriage that apply to Telecom services under Title II.
The Republicans at the FCC and the incumbent broadband providers like classifying broadband access as an “information service” because it allows them to escape certain mandatory regulations applicable to Title II services. I also muddies the waters on the extent of the FCC’s general authority to regulate broadband in the future. Because Title I “ancillary” services rely on the FCC’s general jurisdiction over “communication by wire and radio,” it is much easier to argue that the FCC does not have authority for any specific regulation the FCC may impose in the future.
So why doesn’t Brand X logic work here as it did for DSL, Cable, and BPL? Because Title II Telecom regulation (and, for what it’s worth, Title VI Cable regulation) differe from Title III spectrum regulation in a crucial way. Title II says “A wire is only subject to FCC regulation if it is used in communication. So you look at what is going a ccross the wire to determine if it is subject to FCC regulation. If it’s plain old electricity, then the FCC has nothing to say here. If it is information that meets the definition of ”telecommunications service,“ then it’s Title II. If it’s information that meets the definition of ”cable service,“ then it’s Title VI. And if its some other kind of information, but still ”communication by wire,“ then it’s Title I.
But Title III ”Radio“ works different. EVERY deliberate use of radio spectrum to send any kind of information is a Title III service, regardless of the nature of the information. You can’t decalre a Commission license a Title I ancillary service based on traffic anymore than I can declare that a man who sits like a duck and acts like a duck is a duck. Under 47 USC 301, every use of radio requires a license. Under 47 USC 303, the Commission always has the power to regulate licenses under the public interest. Under 47 USC 304 and 47 USC 309(h), each licensee explicitlee agrees to be subject to the regulatory power of the FCC.
Curiously, the one potential exception to this is unlicensed wireless. Back in 2004, as part of something called the Second Ultra-Wideband Order, the Commission explained that you do ”unlicensed” spectrum, despite the fact that 47 USC 301 requires a license for use of radio spectrum, because the radiation by unlicensed devices was so low power and under rules that prevented it from potentially causing interference. I shan’t try to go through the entire reasoning here. I shall merely observe that unlicensed spectrum access is thus outside the scope of Title III, and therefore broadband via unlicensed access could be declared a Title I ancillary service. Kinda funny when you think about it, if you have a brain like mine that appreciates a fine regulatory irony.
Mind you, the FCC can effectively deregulate broadband via licensed services by declaring that it will treat broadband the same way over wireless that it does over wireline. Nothing in Title III mandates any particular set of service rules. But a subsequent FCC can always reverse that with a new rulemaking. Again, a difference that looks kind of silly and artificial, but with potentially enormous significance if, for example, the FCC changed hands in 2009 with the election of a Democratic President.
I told you it was technical. But it matters. If it didn’t, the wireless guys wouldn’t be wasting their time pushing for information service classification.
Stay tuned . . .