AT&T: FCC has never had regulatory power over broadband

[Dave Farber <dfarber () me com>]

Begin forwarded message:

> From: Stagg Newman <lsnewmanjr () yahoo com>
> Date: April 14, 2010 4:10:22 PM EDT
> To: Richard Bennett <richard () bennett com>, George Ou <George.Ou () digitalsociety org>
> Cc: "dave () farber net" <dave () farber net>, Lauren Weinstein <lauren () vortex com>
> Subject: Re: [IP] AT&T: FCC has never had regulatory power over broadband

> It is a complicated history.   As a non-lawyer I certainly find it confusing.
>  
> And then I remember what Scalia wrote via a vis the Telecom Act of '96
> and take some comfort that I am not the only one who finds this confusing
> "Not only is this act not a model of clarity, it is in fact a model of ambiguity and self contradiction ...." - Anton 
> Scalia
>  
> Can one of the lawyers provide more details of what the FCC ruled on in 2002 and the context?
>
> From: Richard Bennett <richard () bennett com>
> To: George Ou <George.Ou () digitalsociety org>
> Cc: "daIve () farber net" <dave () farber net>; Lauren Weinstein <lauren () vortex com>; "lsnewmanjr () yahoo com" 
> <lsnewmanjr () yahoo com>
> Sent: Wed, April 14, 2010 3:42:45 PM
> Subject: Re: [IP] AT&T: FCC has never had regulatory power over broadband
>
> Cable modem was never a Title II service, so there's no history of "freeing Cable Broadband from Title II." There was 
> some ancillary authority trick prior to the 2002 ruling, but never a Title II status for Cable.
>
> RB
>
> On 4/14/2010 1:36 PM, George Ou wrote:
> > The FCC had never had Title II powers over broadband on the IP layer (Layer 3).  What they had was price regulation 
> > powers (Title II) over DSL transport (Layer 2) through the use of ATM PVCs in the DSLAM up until 2005.  The FCC had 
> > regulated wholesale prices of the sharing of twisted pair and DSLAMs.
> >  
> > In July 2005, the FCC won the “Brand X” case affirming its 2002 ruling that freed Cable Broadband from Title II.  In 
> > August 2005, the FCC went further and freed DSL transport from Title II classification and no longer regulated 
> > wholesale prices for DSL transport.
> >  
> >  
> > What the Open Internet Coalition and others are now is asking is that the FCC should regulate broadband on all 
> > levels under Title II such that its actions on Comcast and its NPRM can be justified.  That would have to include 
> > layer 3 IP services, Internet transit, IP interconnect (peering), and maybe even CDN.  But from what I am reading, 
> > the FCC is limited in power to regulate prices even on things like Video on Demand, so I can’t see how they would 
> > justify price regulating the whole darn Internet and everything it encompasses.  I mean can the FCC regulate the 
> > price of Amazon’s virtual “Elastic Cloud” servicers?
> >  
> >  
> >  
> >  
> > George Ou
> >  
> > From: Dave Farber [mailto:dave () farber net] 
> > Sent: Wednesday, April 14, 2010 5:56 AM
> > To: ip
> > Subject: [IP] AT&T: FCC has never had regulatory power over broadband
> >  
> >
> >
> >
> >
> > Begin forwarded message:
> >
> > From: Stagg Newman <lsnewmanjr () yahoo com>
> > Date: April 14, 2010 8:50:37 AM EDT
> > To: dave () farber net, ip <ip () v2 listbox com>
> > Subject: Re: [IP] AT&T: FCC has never had regulatory power over broadband
> >
> > The FCC has regulated Frame Relay, ATM, and SONET and other high speed private line services as Title II services.
> > Those service are in the family of broadband services.
> >  
> > The FCC did not regulate Internet service as Title II.
> >  
> > There is a deft change in the email below from broadband to Internet.  They are not synonymns.
> >  
> > From: David Farber <dave () farber net>
> > To: ip <ip () v2 listbox com>
> > Sent: Tue, April 13, 2010 4:58:38 PM
> > Subject: [IP] AT&T: FCC has never had regulatory power over broadband
> >
> >
> >
> > Begin forwarded message:
> >
> > From: dewayne () warpspeed com (Dewayne Hendricks)
> > Date: April 12, 2010 2:44:14 PM EDT
> > To: Dewayne-Net Technology List <xyzzy () warpspeed com>
> > Subject: [Dewayne-Net] AT&T: FCC has never had regulatory power over broadband
> >
> > AT&T: FCC has never had regulatory power over broadband
> > The Hill
> > By Kim Hart
> >
> > AT&T lobbyist Hank Hultquist disputes that the FCC ever had the authority over broadband that it seeks today.
> >
> > His comments in a blog post fuel the fast-growing fight over whether the FCC can or should reclassify broadband as a 
> > "Title II" service, rather than the "Title I" service it is today. The D.C. Circuit clearly said last week that the 
> > FCC cannot impose net neutrality rules with the current classification.
> >
> > A host of legal experts and lobbyists have made the case that the FCC should be able to revert back to Title II, 
> > since the agency used to have regulatory authority over DSL and other broadband services until 2002, when they were 
> > reclassified as Title I.
> >
> > <http://thehill.com/blogs/hillicon-valley/technology/91603-atat-fcc-has-never-had-regulatory-power-over-broadband>RSS
> >  Feed: <http://www.warpspeed.com/wordpress>
> >
> >
> >
> >
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