Court challenge to common carrier status for broadband chugs on

by Steve Blum • , ,

The usual suspects took their case to the U.S. supreme court last week, asking that the Federal Communications Commission’s decision to classify Internet access as a common carrier service be thrown out. Several lobbying groups, including a couple of cable industry front organisation and telco hired guns, and companies such as AT&T want the supreme court to declare that Internet access is an information service, rather than a telecommunications service.

The basic argument is that since Internet access involves a lot of background routing and (extremely brief) caching of data, broadband providers are producing and/or processing information, rather than just delivering it from point A to point B for subscribers.

If it’s information, it’s not a common carrier service. If it’s just schlepping data here and there, it’s a telecommunications service and therefore legitimately within the FCC’s scope to regulate under common carrier rules.

Regardless of whether Internet access should be regulated, or not, by the FCC, the claim that your Internet service provider is somehow adding value to your data stream is nonsense. It would be the same as arguing that because a telco has to look up the telephone number you dial and then route your call, it’s an information service too.

If that were true, telephone service – and telegraph service before it – would never have been brought under common carrier rules in the first place. Plain vanilla Internet service is no different. You type in a web address which an ISP interprets and routes your data – your request for a web page, for example – accordingly. It’s a simple transmission of data between you and the web service you specify. The ISP is adding no additional value.

This appeal to the supreme court is not likely to go very far. First, the case has been reviewed twice by an appeals court with deep experience with telecoms law and both times the ruling was in the FCC’s favor. Second, the FCC itself is reconsidering the decision. For good or ill, it might act before the supreme court even decides if it wants to take the case.