Tag Archives: Title I Regulation

My Broadband Regulatory Wishlist

Chairwoman Jessica Rosenworcel wasted no time in declaring that the FCC is going to tackle reinstituting Title II regulation for broadband. She made the announcement only a few days after the Senate approved Anna Gomez to fill the open fifth Commissioner slot. Since her announcement, I’ve been thinking about the things I’d like to see the FCC tackle with five Commissioners.

Net Neutrality. This is not at the top of my list, but I put this first to get it out of the way. Most big ISPs have not been engaging in big violations of the net neutrality principles. This is partially because ISPs didn’t want to see net neutrality to be the excuse for reintroducing broadband regulation. But it’s also because California has been successful in implementing net neutrality. There is no practical way for a nationwide ISP to violate net neutrality rules everywhere except California, so they hesitate to do so. The bottom line is that discriminating against some classes of customers or types of traffic is bad business and most big ISPs just don’t go there to the extent that was always feared by net neutrality proponents. But it seems likely that the net neutrality rules will be reinstated.

Carrier Disputes. Industry insiders miss the ability to take broadband disputes between carriers to the FCC for resolution. This is a quiet part of the industry that has always been effective yet under the radar. Just the threat of taking another carrier to the FCC was often an effective negotiating tactic when ISPs violated contracts or industry practices. But killing Title II regulation for broadband meant that the FCC no longer claimed jurisdiction over many broadband disputes – leaving carriers with a much tougher path of taking disputes to court.

Consumer Protection. Probably the biggest change when Title II regulation was killed was that the FCC stopped taking an active role in protecting consumers against bad behavior by ISPs. When people got so fed up that they finally complained to the FCC about bad ISP behavior, the ISPs generally tried to resolve issues to stay on the good side of the FCC. In the cases where a lot of consumers were harmed by an ISP practice, the FCC ordered ISPs to fix bad behavior and often required refunds of overcharges. That all went away with the end of Title II regulation. The FCC still has a complaint process, but the agency just forwards consumer complaints to ISPs which have been free to ignore them. The FCC further passed the responsibility for consumer protection to the FTC to police ISP’s bad behavior – which is totally ineffective since the FTC doesn’t have the authority to set industry-wide rules and only prosecutes the worst of the worst behavior, one ISP at a time.

Merger Conditions. The FCC often used its Title II authority to make ISPs accept conditions for broadband mergers. Charter customers can all thank the FCC for blocking the company from instituting data caps as a result of an agreement made when the company wanted to merge with Time Warner Cable. The FCC has not always stuck to its guns in enforcing merger conditions, but this is one that has saved millions for Charter customers. This prohibition will end soon, so be on the lookout for Charter data caps.

Collecting Real Pricing Data. The FCC periodically does urban rates studies, but in doing so, it doesn’t collect real prices – just the prices that ISPs claim. A study in Los Angeles last year showed that Charter had different prices by neighborhood throughout the City, with the best deal being offered to areas with higher household incomes. Title II regulation theoretically would allow the FCC to somehow regulate prices – but it’s hard to imagine it would ever do so. It doesn’t regulate prices for telephone, cable, or cellular service, and it’s hard to imagine an FCC wading into this issue. But having Title II authority could give the FCC leverage to encourage lower rates when ISPs ask for other concessions from the agency.

Privacy. Like with net neutrality, California is far ahead of the FCC in terms of trying to protect customer privacy. It would be great to see the FCC change privacy policies to protect consumer data in today’s complicated online world.

Giving the States Cover for Regulating. When the FCC gave up on regulating broadband, most states did so as well. It’s difficult and expensive for states to take on the big ISPs without the cover of the FCC regulating and taking most of the industry flak. ISPs use the tactic of suing states that try to regulate them in any way.

A Broadband Map that Works. This issue probably means I am completely fantasizing. I don’t think there will ever be a broadband map that can work. When the BEAD grants are behind us, I suspect we’ll move back to not carrying how lousy the maps are. But if we are somehow forced to care about maps, it would be good if the process worked.

Deregulating Text Messaging

“This is one of the oddest dockets I’ve ever seen”. That’s roughly quoting myself several times over the last year as I read some of the things that the current FCC is up to. I find myself saying that again as I read the FCC’s recent docket that proposes to classify SMS text messaging as a Title I information service. Their stated reason for the reclassification is that it will make it easier to fight text message spam, and that stated reason is where the FCC loses me.

Text message spam is a real thing and I’ve gotten some annoying text spam over the last year and I’d sure hate to see my texting inbox get polluted with crap like my email inbox. However, I doubt that you’ll find any technologist in the industry that will tell you that the way to fight spam of any kind is by waving a magic wand and changing the way that something is regulated. The way you fight spam is to put barriers in place to detect and block it – and that is something that only the carriers that control the flow inside of a communications path can do. It’s the solution that the FCC themselves just pushed recently to try to stop robocalling – by demanding that the telephone industry find a solution.

Yet here sits a docket that blindly declares that reclassifying texting as an information service will somehow dissuade bad actors from sending spam text messages. I’m pretty sure that those bad actors don’t really care about the differences between Title I and Title II regulation.

One of the interesting things about this filing is that past FCCs have never definitively said how texting is regulated. Over the years the industry has come to assume that it’s regulated under Title II just like a telephone call – because functionally that’s all a text message is, a telephone call made using texted words rather than a voice call.

To some extent this docket is the first time the FCC has every officially addressed the regulatory nature of text messaging. In the past they made rulings about texting that implies a regulatory scheme, but they never have officially put texting into the Title II category. Now they want to remove it from Title II authority – the first time we’ve ever been told definitively that text is already a Title II service. Here are some of the past FCC treatment of the regulatory nature of text messages:

  • In 1994 the FCC ruled that systems that store and forward telecommunications messages, like SMS texting are ‘interconnected’ services, which at that time were clearly regulated by Title II. But there was no specific statement at the time that texting was a Title II service.
  • In the Telecommunications Act of 1996 the FCC defined a telecommunications service for the first time – which was defined as a service that uses telephones and the PSTN to communicate. The 1996 Act didn’t mention texting, but it clearly fits that definition.
  • In 2003 the FCC declared that text messages were ‘calls’ when the agency implemented the Telephone Consumer Protection Act, which was the same treatment given to other Title II telephone services.
  • In 2007 the FCC included texting as one of the Title II services for which cellular carriers must allow roaming.
  • In 2011 USAC began enforcing the inclusion of text revenues as a Title II interstate revenues that used to assess monies owed to the Universal Service Fund.

All of these regulatory actions implied that texting is a Title II service, although that was never explicitly stated until now, when the FCC wants to reclassify it to be an information service. Reclassification doesn’t pass the ‘quack like a duck test’ because telephone calls and anything like them fit squarely as Title II services. Texting is clearly a type of telephone call and any person on the street will tell you that a text message from a cellphone is just like a phone call using text rather than voice.

Unfortunately, the only conclusion I can draw from this docket is that the FCC has an ulterior motive since their stated reasons for wanting to reclassify texting are pure bosh. There seem to be no obvious reasons for the reclassification. There are no parties in the industry, including the cellular carriers, that have been clamoring for this change. Further, the change will have the negative impact of further shrinking the Universal Service Fund – and expanding rural broadband is supposedly the number one goal of this FCC.

This is disturbing for somebody who has followed regulation for forty years. By definition, regulatory agencies are not supposed to push for changes without first opening an industry-wide discussion about the pros and cons of any suggested changes. Regulators are not supposed to hide the motives for their ideas behind false premises.

The only justification for the FCC’s proposed ruling that I can imagine is that the FCC wants to kill all Title II regulation. It seems they are on a mission to eliminate Title II as a regulatory category to make it hard for future FCC’s to reregulate broadband or to bring back network neutrality.

If that’s their real agenda, then we ought to have an open discussion and ask if we ought to eliminate Title II regulation – that’s how it’s supposed to work. The rules establishing the FCC call for a process where the agency floats new ideas to the world so that all interested parties can weigh in. The FCC is not ready to face the backlash from openly trying to kill Title II regulation, so instead of an open debate we are seeing a series of ridiculous attempts to chip quietly away at Title II regulation without overtly saying that’s their agenda.

In my opinion the time when we ought to stop regulating telephone services is getting closer as technology changes the way that we communicate. But that time is not here and there is still room for monopoly abuse of text messaging. There are a number of examples over the last decade where carriers have blocked text messages – sometimes when they disagreed with the content.

I’m disappointed to have an FCC that is using regulatory trickery to achieve their agenda rather than having a bold FCC that is willing to have the public debate that such a decision deserves. Telephone and related services like text messaging were regulated for many reasons and we ought to examine all of the pros and cons before deregulating them.

I’m guessing that this FCC wants to kill Title II regulation without ever having to tell the public that’s their agenda. I think they want to deregulate text messaging and then point to that deregulation as the precedent to justify deregulating all Title II services without having to suffer to criticism that is sure to come when the public realizes this closes the door on net neutrality.