Panelists Dispute Telecom History at Broadband Regulation Session
Speakers mostly debated the historical backdrop of communications law at a panel hosted by The Federalist Society Thursday on broadband regulation and the net neutrality litigation. Gibson Dunn attorney Miguel Estrada -- who represents NCTA, which is challenging the FCC's…
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net neutrality order -- said the Supreme Court's 2005 Brand X ruling, which upheld the FCC's discretion to classify cable modem service as a Title I information service, focused on “last mile” broadband. But he said the current FCC's 2015 classification of broadband Internet access service as a Title II telecom service could have regulatory implications for the “entire Internet.” Essentially, the FCC was regulating the Internet under “public utility-style” common carrier regulation from the 1934 Communications Act's Title II, which was derived from “19th century” railroad regulation, he said. AT&T Senior Vice President Bob Quinn said congressional intent in the 1996 Telecom Act clearly was that Internet access was an information service. He said all nine justices in the Brand X cable broadband ruling agreed that was the case, but three dissenting justices, led by Antonin Scalia, believed there was also a telecom service that had to be offered separately from the integrated cable broadband information service. Eckert Seamans attorney Earl Comstock, who worked on the 1996 Telecom Act as a Senate staffer, said broadband industry providers were pushing a “tremendous mythology” that deviated from the Telecom Act definitions, which he said didn't make telecom and information services mutually exclusive. The FCC's broadband classifications as an information service in the early 2000s turned its 1980 “Computer II” decision on its head by finding Internet access was not common carriage, a shift that “crushed” the plethora of non-facilities-based ISPs that had existed to that point, said Comstock. He represents Full Service Network, which argues that broadband access is a telecom service and that the FCC shouldn't have given broadband providers so much forbearance relief. Roslyn Layton, a visiting fellow at the American Enterprise Institute, disputed the FCC's finding that net neutrality protections were needed to preserve a virtuous cycle of broadband Internet growth and innovation. Estrada said he didn't believe the discretion the Supreme Court showed the previous FCC in Brand X helped the current FCC's case much. Quinn said the 2005 case was different because the question then was whether there were two distinct cable broadband services: an information service and a telecom service.