Neither Fish Nor Fowl: New Strategies for Selective Regulation of Information Services

Abstract

This paper will examine whether and how the FCC can support a campaign to deregulate or treat as outside its jurisdiction many next generation network services while at the same time imposing financially burdensome requirements and regulatory duties on some ventures that fit within the information service provider classification. The FCC has erected a regime largely predisposed to treat next generation services as information services free of interconnection, unbundling, tariffing, line sharing and other requirements Title II of the Communications requires the FCC to impose. To support its deregulatory mission the FCC has found ways to subordinate the telecommunications components in a service that blends telecommunications transmission of bits with information services. For example, in reclassifying DSL from a telecommunications service to an information service the FCC combined the need for deregulatory parity with a new finding that the once stand alone telecommunications service characteristic of DSL had become inextricably integrated with information services with the latter predominating. Notwithstanding the urge to deregulate, either on rational or doctrinal grounds, the Commission has had to confront the fact that competition alone will not ensure the achievement of all Congressionally mandated, or FCC identified public interest objectives. Even with actual or prospective competition, the wholesale abdication of regulatory oversight leaves the FCC in a precarious legal position, if and when it needs to reassert regulatory oversight as has occurred on four separate occasions for VoIP services and once for all types of broadband Internet access information services.