Status of broadband in the US High speed lines as of December 2008: –102 million total high speed connections 84% were faster than 200 kbps in both directions.

Status of broadband in the US

• High speed lines as of December 2008:– 102 million total high speed connections

• 84% were faster than 200 kbps in both directions• 77% were 768 kbps down and 200+ kbps up• 49% were 3 meg down and 200+ kbps up• 34% were 6 meg down and 200+ kbps up• 11% were 10 meg down and 200+ kbps up

Breakdown by technology

• Cable modem: 40.6%

• DSL: 29.6%

• Mobile wireless: 24.6%

• FTTP: 2.8%

• Satellite: 0.9%

• Other: 1.4%

Access to the Internet

• Most common methods– Dial-up over regular telephone line (used to

be the most prevalent, still in use in some areas)

– xDSL line– Cable Modem

Dial up

Telephone Office(regular local switching)

Subscriber(using a modem)

ISP

Can be ILEC orDLEC facilities

xDSL

Subscriber(need DSL modem)

ISP

switch

DSLAM

Can be ILEC or DLEC

Can be ILEC orDLEC facilities

Using Cable Modem

Subscriber(using cable modem)

Cable Headend TransmitterCable Modem Termination System

ISP

What are the regulatory issues?

• There seem to be two types of services here– Internet access

• Dial-up, xDSL, cable modem

– Internet services • Email, web surfing, etc.

• It is clear that Internet services are not regulated– Information services

• What about Internet access services?– Are they separable from Internet services? Does it

matter if the same entity provides both?

FCC’s Declaratory Ruling, March, 2002 (FCC 02-77)

• Principles followed:– Encourage the ubiquitous availability of broadband to

all Americans– Broadband services should exist in a minimal

regulatory environment that promotes investment and innovation

– Seek a national framework for the regulation of competing services that are provided via different technologies and network architectures

Cable Modem Service

• Regards Cable Modem Service as one unified service, whose functions include– Internet connectivity– Enhanced applications– Operations– Customer service

• Cable operators self-provide some or all of these functions or contract with affiliated or unaffiliated ISPs for some or all of them

FCC Decision

• Cable modem service– Properly classified as an interstate information

service (applies end-to-end analysis)– Is not a cable service– There is no separate offering of

telecommunications service

Basis for Decision

• Turns to statutory language of TA96– Telecommunications service: “the offering of telecommunications for a

fee directly to the public or to such class of users as to be effectively available to the public”

– Telecommunications: “the transmission, between or among points specified by the user, or information of the user’s choosing, without change in the form or content of the information as sent and received.”

– Information service: “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing or making available information via telecommunications, . . . does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.”

Not cable service

• Definition of cable service:• One-way transmission of video programming or

other programming service; and subscriber interaction required for the selection or use of such video programming or other programming service (other programming service means information that a cable operator makes available to all subscriber generally)

• Finds that cable modem service does not fit this definition

Further explanation of decision

• Cable operators provide subscribers with a single service, not with separate transmission, e-mail, and web surfing services—telecommunications is just a necessary element in that service

• Applies for both “self-provision” and “input” models

• AOL Time Warner situation is private carriage (decides which ISPs to deal with)

City of Portland Decision

• Ninth Circuit found that local franchising authority could not require multiple ISP access because cable modem service not a cable service

• Ninth Circuit found that @Home was providing a telecommunications service

• Ninth Circuit decision based on a record “that was less than comprehensive” according to the FCC

NCTA vs. Brand X

• Supreme Court decision in June 2005– Cable modem service is an information

service– Upheld the FCC’s Declaratory Ruling of

March 2002

So What About Wireline Broadband?

• FCC Order, September 2005– Facilities based wireline broadband Internet

access is an information service– Facilities based wireline broadband Internet

providers no longer required to separate out and offer transmission as a standalone service subject to Title II of the Communication Act

– BOCs relieved of Computer Inquiry requirements with respect to wireline broadband Internet access services

• Facilities based wireline carriers can offer Internet access transmission arrangements on common carrier or non-common carrier basis

• Facilities based wireline Internet access service providers had to continue to provide existing wireline broadband access transmission offerings to unaffiliated ISP’s for a one year transition period

• Provider may choose to offer broadband transmission as a telecomm service to an ISP but does not have to.

• Transmission component as part of a facilities-based provider’s offering of broadband Internet access to end users using own transmission facilities is not a telecommunication service under the Telecom Act

What does this all mean?

• Both cable modem and DSL are information services – Interstate in jurisdiction– FCC has decided to forebear from regulation

FCC Policy Statement, 2005

• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public internet– Consumers are entitled to access the lawful Internet content of

their choice– Consumers are entitled to run applications and use services of

their choice, subject to the needs of law enforcement– Consumers are entitled to connect their choice of legal devices

that do not harm the network– Consumers are entitled to competition among network providers,

application and service providers, and content providers

What about network neutrality?

• Comcast Case– April 2010 the U.S. District of Columbia

Appeals court found in favor of Comcast• The FCC could not regulate an Internet service

provider’s network management practices

• Why not?

More on Comcast decision

• FCC relied on its “ancillary authority”– May “perform any and all acts, make such

rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions” (U.S.C. § 154(i)

– Has to be “reasonably ancillary to the . . . effective performance of its statutorily mandated responsibilities” (Am. Library Ass’n v. FCC, 2005).

Two-part test

• The FCC’s general jurisdictional grant under Title I covers the regulated subject

• The regulations are reasonably ancillary to the FCC’s effective performance of its statutorily mandated responsibilities

Two More Open Internet Principles

Added by the current FCC Chair:•A provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner •A provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking

Reasonable network management

• All six principles are subject to "reasonable network management." Network management is reasonable if it is used

• To manage congestion on networks • To address harmful traffic (viruses, spam) • To block unlawful content (child porn) • To block unlawful transfers of content (copyright

infringement) • For "other reasonable network management practices"

So, given the Comcast Case

• Where does the FCC go next?– Leave things as is?– Regulate under Title II?– A third way?