The D.C. Circuit’s decision to vacate the FCC’s Comcast-BitTorrent order has a lot of people chattering, including a University of Michigan Law School professor, about how the FCC should “reclassify” broadband as a “Title II” service. The belief is that such a move is necessary to either (a) extract the FCC from an “existential crisis,” or (b) free the FCC’s National Broadband Plan from “legal limbo.” The FCC’s top lawyer has fueled the chatter with a blog post, questioning its authority on a variety of issues, in light of the court decision.
I’m not going to bore you with our view of why classifying broadband as Title II is a mistake. Instead, I’m going to bore you with a brief history of broadband classifications and the mythology that has sprung up around them.
Some believe, incorrectly, that broadband Internet access used to live under the watchful eye of a wise and beneficent FCC. In this latter-day Eden, the FCC regulated broadband Internet access as a telecommunications service under Title II. But then the FCC was tempted into taking a bite out of the Title I apple, and pretty soon they had eaten the whole thing.
I can see why some people want to peddle this story and why others might believe it. But the truth is that the FCC has never regulated “broadband Internet access” under Title II. In fact, the FCC has never regulated any type of Internet access under Title II.
What, you ask? How can that be? Everyone knows that the deregulatory Bush Administration spoiled everything when it changed the classification of broadband to an information service under Title I. However, this narrative simply is not true. In fact, it was the Clinton Administration FCC that definitively declined to classify Internet access as a telecommunications service.
When it first looked at this issue back in 1998, the FCC (under then-Chairman Bill Kennard) said that “classifying Internet access services as telecommunications services could have significant consequences for the global development of the Internet. We recognize the unique qualities of the Internet, and do not presume that legacy regulatory frameworks are appropriately applied to it.”
The FCC reached the same conclusions in 2002, 2005, 2006 and 2007 when it likewise classified cable broadband, DSL, powerline broadband and wireless broadband as information services. And when this information service classification was challenged, the FCC defended it all the way to the United States Supreme Court… and won.
If you want a detailed legal explanation of why broadband was never classified as a Title II telecommunications service, read this.
The bottom line is that this idea that broadband Internet access was once in the Eden of Title II, only to have paradise lost by putting it under Title I is revisionist history. The reality is that if the Commission decides to classify any Internet access service as a telecommunications service under Title II, it would be doing so for the first time. And that would be unprecedented.