Hank Hultquist at AT&T and Harold Feld at Public Knowledge recently had an exchange debating the application of Title II to wireline Internet access service providers. But this discussion, while interesting from a wireline perspective, didn’t shed any light on the historical application of Title II to wireless broadband access – probably because Title II has never applied to wireless broadband Internet access – either the service itself or the underlying transport.
Unlike in the wireline context, Title II has a whole doesn’t apply to wireless voice service (i.e., commercial mobile radio services (“CMRS”)), because the FCC has forborne from applying most Title II provisions to CMRS carriers. And, as the FCC said in its 2007 Classification Order classifying wireless broadband Internet access service is an information service, the FCC had “not previously considered the appropriate classification of wireless broadband Internet access service.” (2007 Classification Order at paragraph 3.) In that Order, the FCC concluded that wireless broadband Internet access service, whether offered using mobile, portable, or fixed technologies, is an “information service” under the Communications Act, and that the transmission component of wireless broadband Internet access service is properly classified as “telecommunications” and not “telecommunications service” under the Communications Act. The FCC has thus never applied Title II to wireless broadband Internet access or distinguished between the underlying transport service for wireless broadband Internet access and the access service itself. Given the FCC’s long history of “light” wireless regulation, any attempt to classify wireless broadband Internet access as a Title II service would be incredibly novel (not to mention unnecessary given the level of competition in the wireless marketplace).
As an interesting aside, those who believe Title III somehow gives the FCC more authority over wireless Internet access have misread FCC precedent on the issue. In the 2007 Classification Order, the FCC disavowed a connection between Title III and Title II classification issues: “Application of provisions governing access to and use of spectrum (and their corresponding Commission rules) is not affected by whether the service using the spectrum is classified as a telecommunications or information service under the Act.” (Id. at paragraph 36.)
Minor correction, by statute, Title II applies in the form of Section 201/202 and 208 — which the statute prohibits the FCC from forbearing. It also applies under the roaming order (which is a 201/202 obligation).
My wording was unclear. I said “Title II has [sic] a whole” doesn’t apply, and then mentioned FCC forbearance from most Title II provisions. I meant what your post says — that only certain portions of Title II apply to wireless voice services, i.e., sections 201/202 and 208.