FCC bases big decisions on small facts spooned out by big telecoms companies

by Steve Blum • , , ,

The Federal Communications Commission jumped in on the side of Charter Communications in a dispute with the Minnesota Public Utilities Commission. The case was bumped to a federal appeals court – the MPUC lost the first round – and now the FCC has moved in to protect its turf.

The question is whether Minnesota can regulate voice over Internet protocol (VoIP) phone service the same way it does old style analog service. There’s a great article by Jon Brodkin in ArsTechnica that goes through the details of the case, so I won’t repeat it here.

My interest is in the insight I think the FCC’s arguments give into its thinking on whether or not broadband should be classified as a common carrier service, and if not, how does it regulate it, if at all?

The FCC says it hasn’t decided once and for all if VoIP is a common carrier service, but its skidding rationalisations in the Minnesota case and its draft decision rolling back restrictions on when telcos can replace copper service with wireless indicate that it’s happy to zero in on a microscopically literal interpretation of narrow circumstances when it suits a pre-determined outcome, and wave away any annoying facts to the contrary.

In the draft decision on wireline deployment the FCC would abandon what it calls the “functional test” – the practical and overall impact – when assessing infrastructure rollbacks, in favor of a far more narrow standard based on a provider’s own service descriptions. Extending that line of reasoning to VoIP, it doesn’t matter that it’s functionally indistinguishable from legacy service. What’s important is what Charter, in this case, says it is.

It’s a leap, but not an impossible one, to take it one step further and imagine the FCC applying that logic, such as it is, to broadband service.

The core function of broadband service is to transport bits between two points, as determined by the users on both ends. Internet service providers do that “without change in the form or content of the information as sent or received”, as the statutory definition of telecommunications service puts it. It should be a clear cut decision.

But in its draft wireline decision and its court filing in the Charter appeal, the FCC prefers to ignore a common sense reading of the facts in favor of swallowing the marketing claims of big telecoms companies hook, line and sinker. If there was any doubt as to whether the FCC will scrap broadband’s status as common carrier service, it’s gone now.