AT&T is trying to convince the Federal Communications Commission that it can't reclassify mobile broadband as a common carrier service.

AT&T’s FCC filing yesterday comes as commission Chairman Tom Wheeler is seemingly on the verge of proposing a reclassification of broadband service, perhaps including mobile broadband. Such a move would expose home Internet service and cellular data to common carrier rules under Title II of the Communications Act, which has been used for 80 years to govern the traditional telephone system.

AT&T argues that the 20-year-old Section 332 of the Communications Act bars the FCC from putting mobile data under Title II. Wheeler himself negotiated Section 332 on behalf of the wireless industry when he was head of the Cellular Telecommunications & Internet Association (CTIA), putting mobile voice but not data under Title II. Now he is considering using Title II to enforce net neutrality rules that prevent Internet service providers from blocking or throttling traffic, or speeding up Web services in exchange for payment. But AT&T says he can’t use Title II to enforce net neutrality rules on wireless data providers.

ISPs are likely to sue the commission if it reclassifies Internet service.

AT&T’s filing says that in 332, “Congress drew a bright line between the regulatory treatment of commercial mobile radio services (‘CMRS’) and private mobile radio services (‘PMRS’).” CMRS (including mobile voice) would be treated as common carriage while PMRS would not. AT&T said the commission subsequently classified mobile Internet as PMRS and that it’s too late to change its mind.

“In 2007, the Commission correctly classified mobile wireless broadband Internet access services as both PMRS under Title III and as information services under Title II,” AT&T General Attorney Gary Phillips wrote. “Those separate findings constitute independent and equally sufficient barriers to regulating wireless broadband Internet access as a common carrier service. As the DC Circuit recognized, in light of those findings, ‘mobile-data providers are statutorily immune, perhaps twice over, from treatment as common carriers.’”

AT&T is also trying to use the common carrier status of mobile voice to avoid regulation by the Federal Trade Commission. The FTC cannot regulate common carrier services, but sued AT&T for its practice of throttling unlimited data. AT&T argued in that case that the FTC can't target its data practices because of mobile voice's common carrier status, even though mobile data isn't regulated under Title II.

AT&T’s filing in the FCC net neutrality proceeding was spurred by arguments in favor of reclassifying mobile broadband that came from Public Knowledge, a pro-Title II advocacy group. Public Knowledge attorneys argued in a December 19 filing that “wireless Internet customers must receive the same protection as wired Internet customers, something that is possible because wireless Internet access is a CMRS or CMRS-equivalent service.”

Is wireless broadband a substitute for cellular voice?

AT&T and Public Knowledge disagree over whether the commission has provided adequate public notice to consider reclassifying mobile. Beyond that procedural question, AT&T said the commission can’t reclassify mobile broadband if it adheres to principles used in previous decisions and that Internet-based voice services are not a substitute for cellular voice. AT&T wrote:

Public Knowledge urges the Commission to find that wireless broadband Internet access is the functional equivalent of CMRS and, therefore, not PMRS. In making this claim, Public Knowledge ignores what the Commission has previously described as the “principal inquiry” in determining whether a service is functionally equivalent to CMRS: “whether the service is a close substitute for CMRS.” The Commission used “substitute” there in the same way it is used in defining product markets in antitrust analysis: “whether changes in price for the service under examination, or for the comparable commercial [mobile radio] service, would prompt customers to change from one service to the other.” Wireless broadband Internet access is not a substitute for CMRS—and, therefore, not the functional equivalent of CMRS—under that test, as it is instead a complementary service, typically purchased alongside CMRS voice service.

Although carriers are rolling out Voice-over-LTE (VoLTE), these “calls do not travel over the public Internet and, therefore, do not use the wireless broadband Internet access service,” AT&T wrote. “Wireless carriers’ investment in upgrading their voice networks to provide more efficient and higher quality voice service therefore provides no basis for reclassifying the separate wireless broadband Internet access service as an interconnected service.”

AT&T’s arguments are similar to those made yesterday by the CTIA.

Public Knowledge argued that the FCC could find that mobile broadband is the functional equivalent of CMRS. “[T]he distinction made by the Commission between calls made with native dialing capacity and calls made via VoIP applications has increasingly faded,” the group wrote. “There is no doubt that phones using mobile broadband are capable of replicating the functions of CMRS phones yet mobile broadband services evades necessary treatment as common carriers... The Commission can easily eliminate this disparity by updating its legal determinations to keep abreast of the technological evolution since its 2007 analysis.”

The commission has also not yet ruled on whether VoIP itself is a common carrier service. A vote on broadband is expected on February 26.

Congress could end up taking action before the FCC has a chance. Republicans and Democrats each have plans to support some form of net neutrality rules, but the Republican approach would prevent the FCC from using Title II, while a bill filed by Democrats doesn’t specify whether the FCC should reclassify broadband. President Obama has publicly supported Title II reclassification and could veto a bill.

Meanwhile, NTCA-The Rural Broadband Association, ￼which represents small broadband providers, said that regardless of what authority the FCC uses, it should prevent discrimination both in “last-mile” consumer Internet service and “middle-mile” transmissions. Rural broadband providers have to buy transit service from big network operators to reach the rest of the Internet. Rules on middle-mile transmissions could also address interconnection payment disputes such as those between Netflix and ISPs such as Comcast, AT&T, and Verizon.

Akamai, which offers content delivery network (CDN) services that help websites distribute content faster by delivering it from locations closer to consumers, urged the FCC to maintain CDNs as non-Title II services.