Brown, Justin. “Fostering the Public’s End-to-End: A Policy initiative for separating Broadband transport from Content.” Communication Law and Policy. Spring, 2003. Volume 8, no. 2.

Keywords: end-to-end, n-2-n, broadband, open access, transport, information services, telecommunication services, end-user

Abstract:

This article discusses the current debate over the regulatory classifications applied to Next Generation Internet (NGI), (broadband services,) specifically the FCC’s proposed policy options and rulings concerning the classification of cable and DLS services. After an examination of the regulatory classifications and constructs of the Telecommunications Act of 1996, the author proposes an alternative policy initiative for regulating NGI services.

It is generally recognized that the innovation of diverse functionalities and the extraordinary growth of the Internet can be attributed to an open network environment. Because of this open framework, it is conceivable that anyone with an Internet connection could devise a new application that could offer a better way to utilize the Internet.

Residential NGI is being developed, deployed and marketed by service providers that want to eliminate this open environment by applying limitations and control of the Internets functionality in favor of their own commercial and corporate content and services. Cable operators offering cable modem internet connections, and local telephone companies that offer Digital Subscriber Line (DSL) services, are scrambling to capture significant market shares with their “limited and controlled” next generation Internet services.

Cable and DSL services offer increased Internet speeds – anywhere from 50 to 100 times faster than traditional dialup – enhancing customer’s flexibility and choices of Internet activities. Cable Internet is the most common residential broadband service available. Unfortunately, cable operators typically deny competing ISPs, municipalities and others access to their infrastructure, leaving the control of the majority of residential broadband services in the hands of a few “monopolistic” companies.

Under existing regulations, classification of a particular broadband service (cable or DSL) is tied to a given communication technology. Much of the debate surrounding open access focuses on how these regulatory constructs apply to cable-modem Internet access.

There is a definitional perspective applied to the current regulatory framework which dominates the open access debate. “Telephone service linking the user and the ISP is classic telecommunications” and is defined in the 1996 Telecommunications Act in terms of the transport of information; “transmission, between or among points specified by the user, of information of the users choosing, without change in the form or content of the information as sent and received.” A telecommunication service is defined as “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.” In contrast, an information service (sometimes called enhanced services) is defined as the “capacity for generating, acquiring, storing, transforming, processing, retrieving, utilizing or making available information via telecommunications.” For instance, once connected to the Internet via an Internet Service Provider (ISP), the user has the ability to direct their own Internet activities (through the use of hardware, software, etc.) In addition, the definition of cable service; “the one-way transmission of video programming to subscribers” also adds fuel to the open access debate.

The Telecommunication Act states that telecommunication carriers - sometimes called common carriers, - are regulated services and the associated facilities must be open to competitors. That is, they are obligated to interconnect lines and share facilities with competitors when offering telecommunication services. Information services, on the other hand, are unregulated. Confusing the matter, the FCC and the U.S. Court of Appeals do not agree on how NGI broadband services should be classified.

For instance, the court rejected the notion that the cable Internet service fits the definition of cable service and ruled that cable Internet consists of both telecommunications and information service components. The FCC ruled cable service was only an information service. Under the FCC ruling, cable operators are not obligated to open their networks on a non-discriminatory basis to competitors. The FCC also made the same preliminary ruling for DLS service.

Noting the discrepancies in the judicial interpretations of broadband services and the classifications applied to the various technologies, the FCC sought public comment on open access regulatory issues in an effort to clarify the classifications used to structure regulations. During its review, the FCC focused on the end-user functionality. Following the end-user perspective, the Commission classified the cable modem platform as an information service noting that while cable operators are using telecommunication services to transfer data through the cable modem platform, the telecommunication component is not providing a telecommunication service, it simply provides the end users with cable modem service, hence the information service designation.

The author describes a policy “remedy” which recognizes the transport and carriage of data as a fundamental function of the Internet and builds a regulatory paradigm around the separation of content from network transport. As such, the author recommends that service classifications be clarified to distinguish the transport of data to the Internet as one function and grant the end-to-end, or open design as an enhanced service responsible for the content. According to the author, the separation of content from transport ensures that Internet users will retain power and control over their Internet activities.