Rumack: Elaine, you’re a member of this crew. Can you face some unpleasant facts?
Elaine Dickinson: No.
Airplane (1980).
In 2007 (while I was Wireless Bureau Chief at the FCC), the FCC issued a declaratory ruling (“Classification Order”) classifying for the first time wireless broadband services as “information services.” Perhaps more importantly, the FCC found that “mobile wireless broadband Internet access service is not a ‘commercial mobile service’ under section 332 of the Act.” (Classification Order at para. 1). The latter finding is likely fatal to any attempt by the FCC to reclassify mobile wireless broadband service as a common carrier service subject to Title II regulation or data roaming obligations. Why is this finding so pivotal to ongoing debates at the FCC regarding the regulatory treatment of mobile wireless broadband?
Because, in Section 332 of the Act, Congress specifically prohibited the FCC from treating any mobile service as a common-carrier service unless that mobile service qualifies as a “commercial mobile radio service” (“CMRS”). Section 332(c)(2) states: “A person engaged in the provision of a service that is a private mobile service shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose under this chapter [which includes Title II].” And Section 332(d)(3) defines “private mobile service” as “any mobile service (as defined in section 153 of this title) that is not a commercial mobile service or the functional equivalent of a commercial mobile service, as specified by regulation by the Commission.” So, it makes no matter whether mobile wireless broadband services are “information services”: If mobile wireless broadband services are not CMRS services (as the FCC found in the Classification Order), they cannot be subjected to common carrier regulation.
Can the FCC now make a different factual finding? I doubt any court would sustain such an about-face. To see why, we need to examine the definition of CMRS and the basis for the FCC’s finding in the 2007 Classification Order.
Section 332(d)(1) defines CMRS as “any mobile service . . . that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public.” (Emphasis added.) In the Classification Order, the FCC determined that “mobile wireless broadband Internet access service . . . is not an ‘interconnected service’ within the meaning of section 332 of the Act and the [FCC]’s ‘commercial mobile radio service’ rules.” (Classification Order at para. 41.) FCC regulations define an “interconnected service” as one that provides “subscribers the capability to communicate to or receive communication from all other users on the public switched network.” (47 C.F.R. sec. 20.3.) As the FCC concluded in the Classification Order: “Mobile wireless broadband Internet access service in and of itself does not provide this capability to communicate with all users of the public switched network.” (Classification Order at para. 45.)
To contradict its 2007 finding, the FCC could consider stating that mobile wireless broadband subscribers can now communicate with all other users of the public switched network. But such a statement would be patently false. Mobile wireless broadband Internet access service subscribers cannot reach plain-old-telephone-service subscribers without the use of a VoIP application, which is typically not bundled with mobile wireless broadband Internet access service. Put another way, the availability of downloadable VoIP applications does not alter the fundamental character of the mobile service that is being provided – which is not a CMRS service.
The FCC’s existing interpretation of Section 332 is by far the most reasonable and the most consistent with Congressional intent. I’d be surprised if the FCC were able to craft a revised interpretation that could withstand judicial scrutiny.