Monday, January 14, 2019 Digital Beat The FCC's Classification of Mobile Broadband Ignores Technology, History, and Common Sense

This article is based on a law journal paper, Mobile Broadband Internet Access Service is a Commercial Mobile Service, and Hence Must Be Regulated as a Common Carrier Service, which recently appeared in Information & Communications Technology Law. That paper analyzes the reclassification of mobile broadband Internet access service in the Restoring Internet Freedom Order, and the relevant precedent from the Federal Communications Commission and the courts from the 1940s through 2017.



Jordan



The Federal Communications Commission’s 2018 Restoring Internet Freedom (RIF) Order reclassified mobile broadband Internet access service from a commercial mobile service to a private mobile service, largely by ignoring the integration of the Internet with the telephone network. This reclassification gave the FCC the license to repeal the 2015 net neutrality rules for mobile broadband service.

The Restoring Internet Freedom Order Would Have You Believe that the Internet is Not Part of the Public Switched Network. But It Is.

In 1993, Congress said that a mobile service must be regulated as a common carrier service if the service is provided for profit and makes available to the public a service that is interconnected with the “public switched network.”

The RIF Order asserts that the Internet is not part of the public switched network. How can this be? The Internet is public, it is switched, and it is a network. Despite that, the RIF Order says that the Internet is one network, and the telephone network is another, and that the two are not interconnected. It would have you believe that when packets leave your smartphone, they either head left into the Internet or right into the telephone network. They don’t. Both voice and data packets leave your smartphone and head to a cell phone tower. That is true regardless of what app you are using to make a call.

The Internet and the telephone network are not two separate networks. Today, the public switched network is a single network that is used to offer landline telephone service, mobile telephone service, and mobile broadband service.

Interconnection Between Two Users Has Always Required Compatible Devices

Having decided that the public switched network doesn’t include the Internet, the RIF Order next asserts that mobile broadband service is not interconnected with the public switched network, because it does not allow mobile broadband users to communicate with landline telephones, absent an additional app.

This assertion is ignorant of the evolution in technology over the past 50 years. Before the advent of software, telephones were relatively stupid. You and I could communicate if we purchased telephone service and leased telephones; the telephone network did the rest. Now, however, smartphones are, well, smart. Communication requires not only connectivity to the network and a service plan, but also the use of compatible software.



Figure 1: Telephones before and after the advent of software.



(Kornelia und Hartmut Häfele, Alt Telefon, CC BY-SA 3.0 | Justin14, IPhone 2G PSD Mock, CC BY-SA 3.0)

If you and I are both using smartphones, we can talk using the phone app, Skype, Facetime, or other apps. If I’m using a smartphone and you’re using a landline telephone, I can call you using the phone app, Skype, Google Voice, or other apps. All of these apps route my voice packets over the wireless connection from my smartphone to a cell phone tower, then over other network links, and finally to your phone. To the user, it matters little whether the voice packets travel over what the RIF Order thinks is “the telephone network” or “the Internet.” We can communicate because the cell phone network and landline networks are connected, and because my cell phone service and your cell phone service or landline phone service are interconnected.

The Hallmark of Private Mobile Service Has Always Been that it is Not Offered to the Public

So, what makes a mobile service either public or private?

The FCC classified mobile services as either public or private as early as the 1940s. The principal distinction was whether the service was offered to the public. In the 1940s and 1950s, public mobile services included wireless telegraph services and pre-cellular wireless phone services available to the public, whereas private mobile services included radio services used within a single company e.g. a taxicab or trucking company. By the 1960s, both public paging services and private paging services (e.g. used by a hospital) were introduced. In the classification of a mobile service as public or private, it mattered little whether the service was interconnected with the telephone network. Private mobile services were not, and some (but not all) public mobile services were.

However, what it means to be a public mobile service changed with the introduction and growth of cell phone service in the 1980s and 1990s. Cell phone service soon became the dominant public mobile service, while dispatch (e.g. by a taxicab or trucking company) became the dominant private mobile service. The hallmark of public mobile service – being offered to the public – became synonymous with the service enabling communication with other services offered over a public network.

By the early 1990s, early versions of mobile data services were being introduced, and Congress faced the question of whether they should be classified as private or public. Also, the lines had blurred between private dispatch service and public cellular service. In 1993, Congress rewrote the definition of public mobile service (calling it commercial mobile service) and of private mobile service, requiring that a commercial mobile service make available to the public a service that is interconnected with the public switched network. Congress adopted technology-agnostic terminology, refusing to restrict the public switched network to the telephone network. Making interconnected service available was equated by Congress with making the service broadly available to the public. Private dispatch services that were broadly available to the public were reclassified as commercial mobile service.

The Restoring Internet Freedom Order Misses the Forest for the Trees (And Misconstrues the Trees)

How did this FCC get to the conclusion that the most important public mobile service of our time is a private mobile service?

It did so by choosing to ignore the entire history before 1994 of classification of mobile services as public or private, and by adopting an implausible interpretation of Congress’s 1994 definitions. First, the RIF Order mistakenly asserts that the Internet is not part of the public switched network, ignoring the integration of the Internet with the telephone network. Second, it mistakenly asserts that mobile broadband service is not interconnected with the public switched network, ignoring the evolution of mobile devices from stupid landline telephone to smartphones.

But more fundamentally, the RIF Order refuses to understand that under the entire history of FCC, Congress, and court precedent since the 1940s: the fundamental distinction between public and private mobile service is whether the service is offered broadly to the public. There can be no doubt that mobile broadband service is offered broadly to the public. The RIF Order ties itself in knots in order to come to its desired conclusion that mobile broadband is a private mobile service.

The expert agency that regulates communications should know both Internet technology and its own history better. The RIF Order demonstrates that this FCC doesn’t.

Also see:

The FCC's Restoring Internet Freedom Order is Ignorant of and Conflicts With the Internet's Architecture

Scott Jordan is a Professor of Computer Science at the University of California, Irvine. His current research interests are Internet policy issues, including net neutrality, interconnection, and device attachment. He served as the Chief Technologist of the Federal Communications Commission during 2014-2016.