Network Neutrality Redux and the Return of Falsehoods and Disinformation

            Despite vowing to eschew involvement in the latest Network Neutrality drama, I cannot sit back and let stand the resumption of the distorted gospel preached by the anti-network neutrality crowd.  This group has legitimate criticisms, many of which I have tried, via hundreds of law review pages—to analyze, and even endorse, in specific instances.  

            For example, see Freedom to Discriminate: Assessing the Lawfulness and Utility of Biased Broadband Networks, 20 VANDERBILT JOURNAL OF ENTERTAINMENT AND TECHNOLOGY LAW, 655-708 (2018); https://scholarship.law.vanderbilt.edu/jetlaw/vol20/iss3/2/; Grey nuances in the black and white debate over subsidized Internet access, 41 TELECOMMUNICATIONS POLICY 1017-1026 (2017); http://dx.doi.org/10.1016/j.telpol.2016.10.002; Network Neutrality and Consumer Demand for “Better Than Best Efforts” Traffic Management, 26 FORDHAM INTELLECTUAL PROPERTY, MEDIA & ENTERTAINMENT LAW JOURNAL, 71-102 (Fall, 2015); http://www.fordhamiplj.org/publications/network-neutrality-and-consumer-demand-for-better-than-best-efforts-traffic-management/; Internet Protocol Television and the Challenge of “Mission Critical” Bits, 33 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL, No. 1, 47-87 (2015);http://www.cardozoaelj.com/wp-content/uploads/2014/01/Frieden-FINAL.pdf.

Even current FCC Commissioners, who ought to know better, will trot out the same clearly untrue parade of horribles.

            Network neutrality regulation will not create a suffocating Internet rate regulation regime.  The Democratic majority has clearly exempted broadband internet access from Title II common rate regulation. By the way, Title II still explicitly applies to wireless telecommunications, like cellphone service, and no one can credibly claim that carriers are severely constrained by  overpowering FCC oversight.  Network neutrality orders have always applied light-handed regulatory oversight.

            Title II of the Communications Act does not impose some atavistic, old school “public utility” regulation.  Despite the growing efforts of the Supreme Court to prevent regulatory agencies from responding to changed circumstances, the FCC has frequently recalibrated its Title II regulatory toolkit over time.  My prior blog post https://telefrieden.blogspot.com/2023/10/upcoming-limits-on-fcc-statutory.html noted that an expansive reading of West Virginia. v. EPA,  https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf might prevent the Commission from streamlining and reducing regulation, unless the Court can craft language that creates an exemption for deregulatory initiatives that require a new and improved statutory interpretation.

A doctrinal and wrong-headed insistence on legislative clarity, ironically could prevent the FCC from improving regulations and make them better in light of fast changing technological and marketplace conditions.  Bear in mind that the last major revision to the Communications Act of 1934, took place in 1996, a time preceding the emergence of a mission critical Internet for most people.  It appears that some of the six conservative Supreme Court Justices now expect Congress to act early and often in revising the Communications Act.  If Congress fails to act—and we surely can expect that--then apparently the FCC is powerless to respond to changed circumstances.

Over several decades, I have tried to explain that much of the problems in applying statutory definitions to Internet access, stems from the FCC’s insistence that a single classification must apply.  The FCC created mutually exclusivity between telecommunications services and information services in 1998 in response to a letter of inquiry from a Senator Ted Stevens. See Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13 FCC Rcd 11501(1998).

Nothing in the Communications Act prevents the FCC from recognizing that technological and marketplace convergence creates service offerings that combine basic and enhanced, telecommunications and information services. Our wireless handsets offer basic plain old telephone service, texting, which used to be a legacy telecommunications service, and other services that combine data processing/information services with telecommunications carriage.

            The FCC does not have to insist on an either/or dichotomy,  Nothing in the Communications Act mandates this.  We have had to tolerate decades long regulatory toggling between telecommunications service and information service, because the FCC cannot wrap its head around the reality that convergence requires a nuanced and admittedly more complicated blend of definitions.  Sometimes the statute does not even provide a definition, such as “advanced telecommunications capability.” The FCC interprets these words to include broadband, but the Republican Commissioners want to ignore the word telecommunications and instead insert information service.  This sure looks like overreaching, legislating by unelected bureaucrats so reviled by the right.  Then again, some of them want to convert social networks into involuntary common carriers to deny them any sort of First Amendment editorial freedom.

            Lastly (I hope!), we really ought to laugh at the false notion that a single regulatory initiative will exclusively impact the aggregate level of infrastructure investment carriers will make in a given year.  Former FCC Chairman Ajit Pai preached this gospel relentlessly and it became a truth for anti-network neutrality advocates. One has to ignore the carriers’ business plans and the ebb and flow of technology investment as a function of innovation and product life cycles. 

To believe the network neutrality investment disincentive canard, one would have to discount the billions invested in new 5G spectrum and network upgrades.  I expect sponsored, voodoo economists to “prove” a decline in carrier network investment going forward.  Should aggregate investment actually decline, this outcome more likely results from the winding down of 5G investments, not the onset of innovation and investment stifling regulation.

The FCC Really, Really Does Care About Making Spoofing Illegal

            My prior blog entry noted that an unexpected consequence of classifying texting as an information service lies in having to treat texting labels and other enhancements as information services as well.  See https://telefrieden.blogspot.com/2019/01/omg-fcc-just-legalized-spoofing.html. In a nutshell, I reasoned that if texting constitutes an information service, then spoofing must as well, thereby disqualifying it from being regulatable as a special type of information service directly integrated with a telecommunications service, such as Caller ID.

            Spoofing of information service classified texting cannot qualify as an information service designed to "manage, control, or execute operation of a telecommunications system or the management of a telecommunications service.”  If spoofing constitutes an information service by itself, then it remains an information service when integrated with another information service, such as the newly clarified FCC determination that texting fits solely within the information service classification.

            Given the FCC’s dichotomous thinking, a service must fit entirely in the telecommunications service classification, or the information service category, with a hybrid combination occurring only when an information service supports—and is subordinate to—a clearly telecommunications service offering.  The FCC can regulate spoofing of telephone caller IDs, because the data processing, which manipulates and misrepresents the source of a call, clears acts on a telephone call that remains classified as a telecommunications service.

            Soon after releasing its “clarification” of the regulatory status of texting as an information service, the FCC has turned its attention to spoofing as mandated by a recent and rare amendment to the Communications Act of 1934.  See Implementing the Anti-Spoofing Provisions of the RAY BAUM’S Act, Notice of Proposed Rulemaking, WC Docket Nos. 18-335, 11-39,  FCC-CIRC1901-05 (draft publicly released Jan. 3, 2019); https://www.fcc.gov/document/implementing-anti-spoofing-provisions-ray-baums-act.

            The FCC really, really has to care about spoofing, because the general public has become so ticked off by the proliferation of robocalls and Caller-ID trickery. But how can the FCC satisfy its new congressional mandate while at the same time expanding its information service, deregulatory campaign?  Answer: Ignore what it just did and regulate spoofing regardless of what kind of service it misrepresents.

            The FCC has received a clear congressional mandate to expand globally its jurisdictional reach over faked Caller-ID letters and numbers, questionable in terms of geographical reach and effective implementation.  The Commission also assumes it has a legislative mandate to ignore its preexisting telecommunications service/information service regulatory dichotomy and bolster its enforcement of Truth in Caller ID rules for both telecommunications service telephone calls and now clearly classified information service texting. 

            How clever, particularly coming from a regime hellbent to reduce the reach of so-called Title I “ancillary jurisdiction” and the overall regulatory wingspan of the FCC. 

            To pull this dereg/re-reg gambit, the FCC has to pursue self-induced amnesia.  First the Commission has to ignore what it just did by way of reclassifying the overall regulatory treatment of texting.  Only under self-induced amnesia can interpret applicable legislation as re-establishing jurisdiction and enforcement authority over texting regardless of what the Commission did less than a month ago by way of insulating the service from government oversight.

            At best the FCC can pursue this, rather disingenuous spin:

            The Commission can state that it has received a clear and unambiguous statutory mandate to regulate texting as least insofar as spoofed numbers and letters are concerned.  With a specific congressional mandate, the FCC presumably can opt to ignore its grand deregulatory pronouncement for texting, by claiming that a specific provision in the Communications Act nullifies its otherwise applicable interpretation of other Communications Act provisions that would have led to a different, more deregulatory posture, i.e., the information service classification of texting.

            I am confused just what the FCC sought to accomplish in “clarifying” the regulatory status of texting, particularly when days after declaring text largely unregulatable, the FCC has to backtrack big time.  Conclusion: we have a doctrine, result-driven, deregulation obsessed FCC, trigger happy to brand anything wire- or radio-based an information service, no matter how unsustainable based on real world considerations such as the big money in criminally duping consumers to rely on falsified identification of call and text originators.

The Google Telephone Company?

Google has undertaken a beta-test of a telephony platform that includes the opportunity to route incoming calls to multiple devices and telephone numbers as well as free domestic long distance service. See http://www.google.com/googlevoice/about.html.

Google offers a service that fits somewhere between computer-to-computer, Internet telephony and Voice over the Internet Protocol telephony with access to and from the public switched telephone network. These service categories present polar opposites for U.S. regulatory purposes. The FCC’s Declaratory Ruling in Pulver.com clearly states that computer-mediated voice communications constitutes a largely unregulated information service. Without stating that PSTN accessible VoIP constitutes a regulated telecommunications service, the FCC has increasingly treated is as such. Using its elastic “ancillary jurisdiction,” provided under Title I of the Communications Act, the Commission has opted to apply Title II, common carrier duties on PSTN accessible VoIP service providers. These duties reduce the competitive advantages of VoIP as they impose significant costs including: financial contributions to universal service funding, wiretapping cooperation with law enforcement officials, emergency 911access, number portability to and from VoIP telephone numbers, and accessibility for people with disabilities.

Most recently the FCC specified that interconnected VoIP service providers must comply with Sec. 214 of the Communications Act that requires common carriers to file applications with the FCC and state public utility commissions before discontinuing any service. See IP Enabled Services, Report and Order, WC Dkt 04-36 (FCC 09-40 May 13, 2009); available at http://www.qsiconsulting.com/pdf/FCC_VoIP_order_5-13-09.pdf.

Does the launch of Google Voice create the potential for the company to become a major regulated telephone company? On one hand, the service clearly provides access to and from the PSTN. But on the other hand, Google Voice requires subscribers to launch an Internet browser and to enter instructions using a Web interface. Does computer-initiated voice communications migrate the service into the “computer-to-computer” Internet telephony classification, despite the PSTN link? Eventually at stake will be millions and possibly billions of dollars in revenues and universal service funding.

Carriers That Can Say No

Recently several press accounts reported that AT&T will allow iPhone subscribers to access Skype’s Voice Over the Internet Protocol (“VoIP”) telephone service via wi-fi, but not using the AT&T wireless network. See, e.g., http://www.usatoday.com/tech/news/2009-04-01-att-skype-iphone_N.htm. Unlike some carriers that disable wi-fi access via cellphones, AT&T could not block Apple’s interest in making handsets operate more like wireless computers. But the financial stakes were too high for AT&T to allow its subscribers to substitute cheap Skype international long distance minutes for quite expensive and quite lucrative AT&T minutes.

Apparently few seem troubled by AT&T’s unilateral decision about what subscribers can and cannot do with their handsets. (But see Skype’s concern: http://digg.com/d1ntP3) So we a carrier that can say no to subscribers when a proposed use threatened revenues despite no credible evidence that such use would cause technical harm to the AT&T network. Perhaps AT&T can base the restriction on contract law and the carrier’s need to recoup the cost of its subsidy for below cost access to the iPhone. However, AT&T retains the restriction even for iPhone subscribers after their two year service term and for subscribers who do not trigger a subsidy in the first place.

The FCC’s passive acceptance of AT&T’s blanket freedom to impose a walled garden access to telephone services, contrasts with what the Commission did when a wireline telephone company blocked DSL access to Skype. Why should this be? If a wire-based telephone company ostensibly provides an information service when provisioning DSL access to the Internet, arguably the FCC has no jurisdiction to mandate interconnection with Skype, or to impose a monetary forfeiture. Yet that is exactly what the Commission did when a rural North Carolina telephone company (Madison River) blocked access to Skype. Now the FCC does nothing when a wireless telephone company, ostensibly providing a similar information service, broadband Internet access, block subscribers from using the carrier’s network.

Can anyone make legal or public policy sense out of this inconsistency?

Can Common Carrier Regulated Telephone Companies Limit Service Plans to Bundled Subscribers?

Several press outlets have disclosed that Verizon may offer very low cost telephone service options available only to subscribers who already have Verizon-provided Internet access. See http://uk.reuters.com/article/rbssTechMediaTelecomNews/idUKN1735246920090217.
One $5 plan would limit outbound calling to 911 emergency and Verizon customer service, while a $10 plan would include some regular outbound calls.

The last time I checked Verizon remained a common carrier telecommunications service provider obligated to file local telephone service tariffs and subject to non-discrimination requirements contained in Title II of the Communications Act. I do not believe Verizon can lawfully offer a telecommunications service limited to a select group of customers who “qualify” to take this service if and only if they also buy Internet access from Verizon.

Perhaps this low cost Verizon service is not circuit switched telephone service, but Voice over the Internet Protocol (“VoIP”) service instead. Arguably Verizon would have no tariff filing obligation, or nondiscrimination obligation for VoIP if classified as an information service. However if the FCC allows Verizon to offer this sort of pre-qualified customer access to VoIP service, the Commission may in effect validate the view that VoIP is not a telecommunications service, something Comcast recently emphasized in response to an FCC letter inquiring whether the company was favoring its VoIP service by exempting it from network management functions that could throttle VoIP offered by competitors. See Letter from Dana R. Shafer, Chief Wireline Competition Bureau and Matthew Berry, General Counsel to Katheryn A. Zachem, Vice President Regulatory Affairs, Comcast Corp. (Jan. 18, 2009); available at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-288047A1.pdf;
Comcast’s response is available at: http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520194593.

Heretofore the FCC has managed to avoid having to make an either/or (telecommunications service vs. information service) classification for retail VoIP. Verizon may not even have anticipated that a marketing tactic to stave off complete wireline customer migration may force the FCC to make an important regulatory call.

Expanding Pedestals

Telephone and cable companies have expanded their service offerings into a triple- or quadruple play of their core service (telephony or video) plus Internet access, wireless and the other companies' core offering. To deliver this package of service the companies often have to expand bandwidth and install additional equipment at or near consumers' homes.

These companies used to install a small pedestal for the electronics and line splice needed to provide service. The right to install such equipment derived from the rights of way granted by property owners or municipal ordinanaces that convery such rights. Of course these companies qualified for free of charge rights of way based on their "public utility" characteristics. Additionally federal, state and municipal regulations existed to safeguard the public.

Telephone and cable companies have qualified for deregulation particularly based on the determination that they provide information and other non-telecommunications services. Yet these companies continue to use "legacy" rights of ways, based on their prior regulated status. Now these companies are expanding the size and footprint of the pedestals they install on private property.

My cable company attempted to install a small refrigerator-sized device on my property. These device would use electric power surely to provide services other than the core service for which the right of way was granted.

Query: can companies providing largely unregulated information services exploit rights of way granted under the pretext of a public interest need for basic telecommunications and video services? Regardless of the actual legality of doing so telephone and cable companies have expanded the size and footprint of their rights of way use and pedestal installation without having to compensate land owners.

If companies enjoy the benefits of an information services safe harbor from regulation shouldn't they lose free rights of way access? bear in mind these are the very companies that loudly claim "confiscation" when government regulates them.