Broadband Internet Access Service Is a Telecommunications Service.

• Author: Jordan, Scott

Table of Contents I. Introduction 157 II. Telecommunications Service Versus Information Service 161 A. NARUC I & NARUC II (1976) 161 B. Computer II (1980) 162 C. Modification of Final Judgement (1982) 168 D. Telecommunications Act of 1996 173 E. Non-Accounting Safeguards Order (1996) 177 III. Precursors to Dial-up Internet Access Service 179 A. United States v. Western Electric (1987) 179 B. Gateway Services Order (1988) 182 C. United States v. Western Electric (1990) 184 IV. The Architecture of Dial-Up Internet Access and Broadband Internet Access 184 A. Internet Services and Layers 185 B. Geography of the Internet 188 C. Separability of Network Services 191 V. Dial-up Internet Access Service 193 A. Universal Service Order (1997) 193 B. Stevens Report (1998) 193 1. Telecommunications, Telecommunications Services, and Information Services 194 2. Dial-up Internet Access Service 195 VI. Early Broadband Internet Access Service 199 A. Advanced Services Order (1998) & Advanced Services Remand Order (1999) 200 B. Cable Modem Declaratory Ruling (2002) 204 C. Brand X (2005) 210 D. Wireline Broadband Classification Order (2005) 213 VII. Broadband Internet Access Service 219 A. Open Internet Order (2015) 219 B. US Telecom v. FCC (2016) 225 VIII. Analysis of the Restoring Internet Freedom Order (2017) 226 A. Definition and Scope of Broadband Internet Access Service 226 1. Functionality of Broadband Internet Access Service 226 2. Geographic Scope of Broadband Internet Access Service 230 B. The Telecommunications Component of Broadband Internet Access Service 232 C. Information Service Capabilities of Broadband Internet Access Service 234 1. Applications Bundled with Broadband Internet Access Service That Under the 2015 Open Internet Order Fall Within the Telecommunications Systems Management Exception 235 2. Applications Bundled with Broadband Internet Access Service That Under the 2015 Open Internet Order Do Not Fall Within the Telecommunications Systems Management Exception 243 3. Edge Provider Applications 243 D. Separability of the Telecommunications Component of Broadband Internet Access Service from Information Service Capabilities of the Service. 247 I. INTRODUCTION

In December 2017, in the Restoring Internet Freedom Order, (1) the FCC reclassified broadband Internet access service from a telecommunications service to an information service. The justification for the reclassification rests primarily on a reinterpretation of relevant statute. The purpose of this paper is to examine and evaluate this interpretation and reclassification in the context of the relevant precedent.

The Restoring Internet Freedom Order first reinterprets broadband Internet access service, (2) which was defined in the 2015 Open Internet Order. (3) To determine whether broadband Internet access service fits the information service definition in the Communications Act, the Order then reinterprets the meaning of the word capability as used in the definition of information service, (4) reevaluates the capabilities of broadband Internet access service, (5) and reevaluates the functionality provided by the Domain Name System (DNS) and caching, (6) in each case reversing the evaluations of the 2015 Open Internet Order.

To determine whether broadband Internet access service is solely an information service, the Restoring Internet Freedom Order reevaluates whether the transmission components of the service are separable from what it perceives as the information service components of the service. To do so, the Order reevaluates consumer perception of the service (7) and the nature of the service offered, (8) reversing the evaluations of the 2015 Open Internet Order.

In addition to statutory interpretation, the Restoring Internet Freedom Order looks back to relevant precedent from both the FCC and the courts. (9) The Order claims that its reclassification of broadband Internet access service is "consistent with classification precedent prior to the [2015 Open Internet Order], which consistently found that ISPs offer a single, integrated service." (10) The Order claims that classifications of earlier forms of Internet access correctly found either that the entire service was solely an information service, or that at a minimum the component of the service outside of "last mile" transmission was an information service. (11) The Order further claims that a body of precedent from FCC and court decisions during the 1970s through 1990s "served as the backdrop for the 1996 Act and informed the FCC's original interpretation and implementation of the statutory definitions of 'telecommunications,' 'telecommunications service,' and 'information service,'" and that this body of precedent supports reclassification of broadband Internet service as an information service. (12)

The Restoring Internet Freedom Order states that its reclassification is "consistent with the Supreme Court's holding in Brand X," the 2005 Supreme Court case (13) in which the Court upheld the FCC's determination that a prior form of Internet access service was an information service. (14) The Order claims that its "reliance on classification precedent ... includes not only the [FCC's] classification decisions, but the Supreme Court's subsequent analysis in Brand X." (15) Specifically, the Order claims that the 2015 Open Internet Order's classification of broadband Internet access service "stands in stark contrast to the [FCC]'s historical classification precedent and the views of all Justices in Brand X." (16)

However, the Brand X Court set out specific guidelines for determining whether the telecommunications components of an Internet access service are separable from any information service components of that service. The Court stated that "[t]he entire question is whether the products here are functionally integrated (like the components of a car) or functionally separate (like pets and leashes)" and "[t]hat question turns not on the language of the Act, but on the factual particulars of how Internet technology works and how it is provided." (17)

In this Article, we take up the challenge set out by the Brand X Court and evaluate whether the telecommunications components of broadband Internet access service are separable from any information service components of that service based on the factual particulars of how Internet technology works and how it is provided. We similarly evaluate whether broadband Internet access service is a telecommunications service or an information service.

We do so by examining the relevant precedent from the FCC and the courts from the 1970s through 2017. The examination integrates a technological perspective (i.e., how technology works) into each part of that precedent in order to understand the precedent and how it is relevant to broadband Internet access service. In this examination, we also proffer our opinion of where precedent has misinterpreted or misapplied the factual particulars of the relevant technology. In doing so, we find that many of the fundamental claims in the Restoring Internet Freedom Order conflict with the factual particulars of how Internet technology works and how it is provided.

In Section II, we examine the definitions of telecommunications service and information service. In Section II.A, we begin with a pair of 1976 National Association of Regulatory Utility Commissioners (NARUC) court decisions that established at two-part test for whether a service is classified as a common carrier service. We find that if a communications service passes both tests, then its classification as a common carrier communications service is not a matter of FCC discretion. In contrast, if a communications service fails either test, the FCC retains the discretion to require the provider to provide the service on a common carrier basis if doing so is in the public interest.

In Section II.B, we examine the FCC's 1980 Computer II Final Decision, which established the FCC's framework for determining which services are subject to Title II of the Communications Act. The Order defined basic services and adjunct-to-basic services (subject to Title II) and enhanced services (not subject to Title II). We use our examination of technological characteristics of transmission, address translation, and storage later in the Article to evaluate broadband Internet access service, DNS, and caching. We examine the Order's discussion of integrated information services (e.g., data processing) that use telecommunications as an input, a model to which we will return when evaluating broadband Internet access service. We further find that a basic service offered to the public passes both NARUC tests and thus must be classified as a common carrier service.

In the remainder of Section II, we examine the adaptation and implementation of the FCC's definitions of basic service and enhanced service into the definitions of telecommunications service and information service, which first appear in the 1982 Modification of Final Judgement and then in the Telecommunications Act of 1996 ("1996 Act"). We find that the definition of telecommunications service implements and replaces the two NARUC tests and that adjunct-to-basic services now fall under the telecommunications systems management exception as telecommunications services. We further find that address translation and storage are part of a telecommunications service when used to facilitate a telecommunications service and are part of an information service when used to facilitate an information service. Under the 1996 Act, information services are competitive because the underlying telecommunications offered by a facilities-based information service provider is available with common carriage protections.

In Section III, we examine precursors to dial-up Internet access service. In two court decisions and one FCC order, the services were declared to include both telecommunications and an information service. However...