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Network Neutrality and the FCC's Inability to Calibrate Regulation of Convergent Operators

Rob Frieden

That FCC Chairman Julius Genachowski is struggling to find a way to calibrate network neutrality and Title I ancillary jurisdiction confirms the difficulty in regulating operators that seamlessly blend carriage and content. See, THE THIRD WAY: A NARROWLY TAILORED BROADBAND FRAMEWORK; available at: http://voices.washingtonpost.com/posttech/genachowski.doc.

Internet Service Providers offer convergent services that blend telecommunications, as in bit transport, with telecommunications services, such as telephony and arguably first and last mile Internet access, with video services, such as Internet Protocol Television, and with information services that ride on top of the bit transmission link. For administrative convenience and not as required by law, the FCC likes to apply an either/or single regulatory classification to convergent operators. Having classified ISPs as information service providers, the Commission unsuccessfully sought to sanction Comcast's meddling with subscribers' peer-to-peer traffic. Now Chairman Genachowski wants to further narrow and nuance regulatory oversight without changing the organic information service classification.

Some network neutrality advocates have urged the FCC simply to abandon the information service classification and reclassify aspects of ISP Internet access as Title II, common carrier regulated telecommunications service. Why use tortured and legally suspect analysis to craft an absolute dichotomy?

What is wrong with the FCC acknowledging that providers of convergent services trigger different regulatory classifications as a function of what service they provide? Even thought the FCC largely emphasizes wireless carriers' information services, the Commission occasionally reminds cellular radio service providers that they still operate as common carriers that for example have to interconnect with other wireless carriers to provide seamless roaming opportunities for users. So it's possible for the FCC to recognize that in the case of wireless carriers, a single venture using the same conduit can configure both regulated telecommunications services and generally unregulated information services.

The FCC has to confront the messy reality that when ventures offer convergent services that combine conduit and content and when these ventures vertically and horizontally integrate throughout many market segments, the Commission cannot rely on absolute either/or service dichotomies to classify everything a venture provides. Even to this day the Commission cannot bring itself to confront this reality as evidenced by its utter silence on what regulatory regime should apply to Voice over the Internet Protocol and Internet Protocol Television.

It's time to recognize that layered and convergent services defy compartmentalization into convenient, single regulatory classifications and regimes.

By Rob Frieden, Pioneers Chair and Professor of Telecommunications and Law. More blog posts from Rob Frieden can also be read here.

Related topics: Access Providers, IPTV, Net Neutrality, P2P, Policy & Regulation, Telecom, VoIP

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