The Internet is a Packet-Switched Telecommunications Network

Abstract

For the second time in five years, the D.C. Circuit in Verizon v. FCC has struck down the jurisdictional theory relied upon by the FCC in creating its Open Internet rules, because the Commission still classifies Internet connections as information rather than telecommunications services. Since the Supreme Court’s decision in Brand X, most legal scholars have considered the question of whether the FCC may choose to regulate Internet access as an information service to be settled law. Drawing on a detailed analysis of the regulatory treatment of protocol processing in the Computer Inquiries and the technical structure of Internet Protocol networks themselves, this essay argues that conventional wisdom is mistaken. The view of ISPs as intermediaries that necessarily store or transform user data is anachronistic, likely taken from the operation of ISPs’ most visible predecessors, online services like CompuServe and America Online. Further, the issue in Brand X was the unbundling of last-mile cable modem transmission facilities, not an end-to-end Internet Protocol service. The factual assumptions underlying the former decision do not hold in the Internet context, a conclusion this paper demonstrates in a way easily replicated by any network engineer. Because of this faulty premise, Internet governance in the U.S. is again dealing with classic telecommunications issues — interconnection, non-discrimination, and vertical integration, but disconnected from existing law and historical precedent.