The Need for a New Approach to Regulation of Device Attachment

Abstract

There has been increasing debate about whether users of communication services should have an “any device” right, i.e. a right to attach devices of their choice to networks to which they subscribe. This debate coincides with a trend toward an “Internet of Things” in which users connect not only computers to the Internet, but also smartphones, set-top boxes, e-readers, tablets, wireless hotspots, navigation devices, wireless routers, hard drives, printers, and telephones.Currently, wide variation exists in a user’s right to attach devices based on network technology. A user's legal ability to attach devices depends on whether the device is attached to a telephone network, video network, cellular network, or the Internet. Part 68 regulations allow attachment of non-harmful devices to telephone networks. Proposed AllVid regulations would allow users to choose navigation devices, but would also allow MVPDs to dictate proprietary adapters. Cellular providers exercise great control over both wireless devices and their functionality. The Open Internet order prohibits blocking of non-harmful devices on fixed broadband Internet access but not on mobile broadband Internet access.In this paper, we investigate whether this convergence of network technology will render useless current laws and regulations in the United States governing device attachment. First, we ask whether technology convergence will cause consumer expectations of various network services to merge. We suspect that users who would not accept an Internet Service Provider dictating what devices the subscriber could attach to their home network may view similar restrictions on set-top boxes or mobile devices with suspicion. To investigate this conjecture, we identify real world scenarios that challenge current U.S. communications law. These scenarios include: consumer choice of set-top boxes; access to MVPD video content through mobile devices; cellular handset certification, crippling and locking; wireless handset subsidization; cellular provider text message blocking; and device-based service plans and device tethering. We conclude that U.S. rules governing device attachment will become unsustainable as network technologies converge.Second, we review the technology underlying attachment and control of devices in telephone, video, and cellular networks and in the Internet. We find that technical differences alone do not justify the inconsistencies in regulation by silo. We further find that the technical differences reveal commonalities in user and provider interests in the use of each type of network.Third, we propose two sets of rights - one intended to protect users of communications networks, and another aimed at protecting providers of communications services – that could be used to unify inconsistent device attachment rules. We return to the real-world scenarios and discuss whether each of these service provider practices would be allowed under our proposed principles. We find that the proposed sets of rights can provide useful guidance in future development of a unified device attachment statute.Finally, we suggest areas for future research. Should a user be guaranteed the right to attach any non-harmful device? How do you define “harm”? Should a provider be able to require a subscriber to use a device supplied by the provider? If so, what functionality should such a mandated device be allowed to implement? Do users have an unfettered right to control their own devices? If so, how can a network provider ensure that all user devices can interoperate with the provider’s network? Does reasonable network management require that a network provider control certain functionality of some user devices?