Hastings Communications and Entertainment Law Journal


Rob Frieden


The Federal Communications Commission desires to apply a single regulatory category to services and service providers, a process the Commission can achieve when ventures concentrate on one function and offer one readily identifiable service, such as telephony. However, technological convergence, digitization and the ability of the Internet to handle many different service types within a single bitstream now make it possible for companies to offer "quadruple play" bundles of wireless and wireline telephony, video, and Internet access services. Following Comcast Corp. v. FCC, the FCC must rethink how to best serve the public interest and safeguard consumers. Absent a legislative remedy, the FCC has experienced great difficulty in finding ways to sanction ISP anticompetitive practices regulations within the Commission's limited statutory authority.

This article explains how the FCC backed itself into a corner when it sought to free the Internet of most regulatory oversight by determining that the information service classification applies to all Internet access technologies. Facing complaints about ISP anticompetitive practices, the FCC currently lacks explicit statutory authority to provide a needed remedy. The article also provides recommendations on how Congress and the FCC might recognize that convergent services, such as Internet access, combine both unregulated information service and telecommunications components in much the same way as wireless cellular telephone companies. The article recommends that in light of the ascending importance of Internet access and the lack of sustainable competition that would foster effective self-regulation, Congress should amend the Communications Act to authorize the FCC to apply limited Title II safeguards to ISPs that already wireless telephony.