Nethead/Bellhead: Progress report
Plans are marching on for Nethead/Bellhead: The FCC Takes On the Internet. Date: Tuesday, Sept. 28. This is a one-day conference, under the auspices of Cardozo's Floersheimer Center for Constitutional Democracy and co-sponsored by the Yale Information Society Project.
So far, representatives of MCI, BellSouth, Verizon, Level3, and Vonage have said they'll come. We've got several people from the FCC signed up. People from Public Knowledge, CDT, Cato, and PFF are coming. David Isenberg, Kevin Werbach, David Weinberger, Jeff Jarvis, and Dave Farber are coming. I'm still working on Google, Intel, AOL, and MSN and have high hopes. Jon Weinberg, Jim Speta, and Rob Frieden are coming.
Excited as I am about who's coming, I'm more focused on the substance. In its IP-Enabled Services rulemaking (WC Docket No. 04-36), the FCC appears to be asserting that although there isn't a compelling rationale for applying traditional “economic” regulation to providers of IP-enabled services (paying for universal service, paying interstate access charges, filing tariffs, etc.), they're considering using their ancillary jurisdiction to apply “social policy” regulations.
The rulemaking asks for comments about which social policy regulations make sense for which IP-enabled services. Here's footnote 155:
“For example, one might question what it would mean to apply E911 obligations on an Internet retailer . . . . Similarly, some obligations may only be sensible in the context of VoIP service. However, to ensure that whatever distinctions we ultimately draw among different IP-enabled services are sound as a matter of law, technology, and public policy, we decline in this Notice to foreclose any particular approach, and therefore frame our questions in terms of all “IP-enabled services,” though some may only apply to particular types of service.”
This rulemaking is not just about VoIP. It's about all IP-enabled services — including email and IM. All of these services are arguably “information services” in the FCC's lexicon, and thus subject to FCC's jurisdiction.
FCC recently found [pdf] that pulver.com's Free World Dialup (FWD) was an information service. Although some commentators had asked FCC to make clear that FWD was just a software application, not a service, FCC took a different route. As I understand it, things that use wires or radios in the US fall into one of two categories in the FCC's eyes: you're either a “telecommunications” entity or service, or you're an “information service.” Since Pulver isn't a telecommunications carrier, it has to be an “information service.”
Pulver had tried to argue that, no, he wasn't offering an “information service” — he was just offering a software product online that created a namespace. But the FCC stuck to its guns:
“[T]he statutory definition of an information service speaks only to the offering of various types of computing capabilities via telecommunications, not the offering of telecommunications itself. The fact that FWD’s computing capabilities, as described above, are available to its members via “telecommunications” – i.e., the telecommunications underlying its members’ Internet connectivity; the telecommunications connecting Pulver’s FWD server to the Internet; and the telecommunications underlying the Internet backbone itself – is sufficient to meet the statutory definition of “information service.”
With me so far? This means that any computing capabilities offered via a connection to the internet are “information services.” Email, IM and the DNS fall in this category. Although these things might not have to be tariffed, because they're not “telecommunications services,” they might have to be subject to several different kinds of social policies — including making their designs subject to FBI approval, making themselves accessible to the disabled, facilitating E911 services, and being subject to privacy rules. That's what the IP-enabled services rulemaking is about. It covers both applications and services.
The argument may be that these social policies are lightweight in comparison to treatment as a common carrier — and that protection from a huge variety of state rules is worth giving the FCC authority to promulgate these social policy regulations.
Potential panel subjects are (still in the planning stages — send advice):
1. What market failure suggests the need for “social policy” regulation of IP-enabled services? If market failure is not the basis for this suggestion (to the extent such a suggestion is being made), what is the rationale?
2. FCC's ancillary jurisdiction to adopt the broadcast flag rule is under judicial review. What are the arguments in favor of/against exercise of FCC's ancillary jurisdiction in the IP-enabled services rulemaking?
3. Should the disability accessibility requirements in Section 255 and 251(a)(2) of the Telecommunications Act be applied to all IP-enabled services?
4. What, if any, consumer protection requirements — including privacy obligations, billing rules, prohibitions of obscene or harassing communications – should be imposed on IP-enabled services?
5. What, if any, obligations to contribute to universal service funds should be borne by the providers of IP-enabled services?
So: Send advice and tips, and join us on September 28.