Appendix A. The Net Neutrality/Open Internet Debate: Evolving Regulatory and Antitrust Principles Applicable to Broadband Internet Access Practices

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APPENDIX A

THE NET NEUTRALITY/OPEN INTERNET

DEBATE: EVOLVING REGULATORY AND

ANTITRUST PRINCIPLES APPLICABLE TO

BROADBAND INTERNET ACCESS PRACTICES

As noted in Chapter 1, there has been considerable controversy

about the role of regulation and antitrust law in the provision of

broadband Internet access services—the integration of

telecommunications and information processing using Internet protocol

or IP that provides end users with “high speed” access to the Internet.1

This Appendix examines in more detail the evolving regulatory and

antitrust principles applicable to the practices of broadband Internet

access providers.

A. The Evolving Regulation of Broadband Internet Access

Historically, the principal regulatory question surrounding

Internet access services was whether such services should be classified as

1. The Federal Communications Commission (“FCC”) defines the Internet

generally as “the system of interconnected networks that use the Internet

Protocol for communication with resources or endpoints (including

computers, webservers, hosts, or other devices) that are reachable,

directly or through a proxy, via a globally unique Internet address

assigned by the Internet Assigned Numbers Authority.” Notice of

Proposed Rulemaking, Preserving the Open Internet, Broadband Industry

Practices, 24 F.C.C.R. 13064, 13083 n. 103 (2009). “Broadband” is an

evolving concept that can be defined in various terms, Notice of Inquiry,

A National Broadband Plan for Our Future, 24 F.C.C.R. 4342, 4346-47

(2009), though typically it is addressed in terms of speed, measured in

kilobits or more recently megabits per second (“Kbps” or “Mbps,”

respectively). According to the FCC, “The term broadband commonly

refers to high-speed Internet access that is always on and faster than the

traditional dial-up access.” See FCC, About Broadband, What is

Broadband, available at http://www.broadband.gov /about_broadband.

html.

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common carrier telecommunications services regulated under Title II of

the Communications Act of 1934, as amended,2 or unregulated

“information services.”3 In a series of decisions beginning in 2002, the

FCC examined the regulatory classification of broadband Internet access

delivered over various technologies, concluding that these should be

generally classified as information services and not subject to common

carrier regulation under the FCC’s Title II authority.4 As a result of this

2. 47 U.S.C. § 151, et. seq. [hereinafter the Communications Act]. The

Communications Act is comprised of multiple titles addressing various

matters within the FCC’s jurisdiction. Title II, entitled “Common Carrier

Regulation,” provides a detailed regulatory regime comprising forty-eight

sections of the United States Code applicable to common carrier

providers of communications services. See A. Schlick, A Third-Way

Legal Framework For Addressing The Comcast Dilemma (FCC May 6,

2010), available at http://www.broadband.gov/third-way-legal-

framework -for-addressing-the-comcast-dilemma.html.

3. Under amendments to the Communications Act added by the

Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56

(1996), codified at 47 U.S.C. § 151 et seq. [hereinafter 1996 Act],

telecommunications is defined as the provision of a transmission

capability for information of the users’ choosing without changing the

form or content of that information. 47 U.S.C. § 153(43).

Telecommunications services, also added by the 1996 Act, is

synonymous with the provision of telecommunications on a common

carrier basis (see 47 U.S.C. § 153(46)), which subjects such services to

the FCC’s common carrier jurisdiction and regulation under Title II of the

Communications Act. Virgin Islands Tel. Corp. v. FCC, 198 F.3d 921,

926-27 (D.C. Cir. 1999). In contrast, information services are services

that incorporate telecommunications, but offer the capability for

generating, acquiring, storing, transforming, processing, retrieving,

utilizing, or making available information. 47 U.S.C. § 153(20). In a 1998

report to Congress in response to questions from former Senator Ted

Stevens, the FCC explained how it might apply the new definitions added

by the 1996 Act to Internet access, explaining that it would view Internet

access as an information service. Federal-State Joint Board on Universal

Service, CC Docket No. 96-45, Report to Congress, 13 F.C.C.R. 11501,

11536, ¶ 73 (1998) [hereinafter the Stevens Report]; see also Notice of

Inquiry, Framework for Broadband Internet Service, 25 F.C.C.R. 7866,

7871-72, ¶ 13 & n.24 (2010) [hereinafter Framework for Broadband

Internet Service].

4. The decisions built on the Stevens Report, supra note 3. For example, the

FCC determined that cable modem, wireline broadband, and wireless

Internet access are all interstate information services. See, respectively,

Declaratory Ruling and Notice of Proposed Rulemaking, Inquiry