What are the Bounds of the FCC's Authority Over Broadband Service Providers? A Review of the Recent Case Law

Abstract

When the Internet was in its nascency, the Federal Communications Commission rejected calls to impose traditional "common carrier" regulation designed for a monopoly telephone world. Instead, the agency classified broadband Internet access as an "information service" under Title I of the Communications Act, and this light touch approach is widely credited with the rapid pace of deployment, adoption, and innovation consumers enjoy today in the broadband ecosystem. With the Federal Communications Commission’s efforts to move forward with the IP Transition and with its new attempt to draft legally-sustainable Open Internet Rules, some now argue that the current legal regime fails to provide the Commission with sufficient oversight authority and, as such, the Commission should reclassify broadband Internet access as a Title II common carrier "telecommunications" service. In an effort to provide some illumination to this important topic, in this Bulletin I review three recent cases from the D.C. Circuit — Comcast v. FCC, Cellco Partnership v. FCC and Verizon v. FCC — to evaluate the current state of the law. These cases indicate that the Federal Communications Commission has ample legal authority over Broadband Service Providers under the current legal regime and, as such, reclassification of broadband Internet access as a Title II telecommunications service is unwarranted.