DSL Was Never Regulated, Oceania Has Always Been At War With Eastasia, And My Offer To AT&T.April 13, 2010
Hank Hulquist over at AT&T writes that the FCC never regulated internet access. It’s a funny thing, because I distinctly remember going through a process where the FCC reclassified DSL from a Title II telecom service to an information service. Let me rummage for a bit . . . . ah yes. Here is the link to the FCC’s 2005 Order reclassifying DSL as an “information service.” In fact, come to think of it, I’m old enough to remember when the telephone companies wanted DSL classified as an “interstate telecommunications service.” Can I find that link on line? Why yes! Here it is: GTE’s DSL Tariff and the Bell Atlantic, BellSouth, GTE, and PACBELL DSL Tariff. (The telcos wanted these classed as Title II telecom to preempt state regulation, if you were wondering.) And what does the first paragraph of the GTE Tariff Order say?
In this Order, we conclude our investigation of a new access offering filed by GTE that GTE calls its DSL Solutions-ADSL Service (“ADSL service”). We find that this offering, which permits Internet Service Providers (ISPs) to provide their end user customers with high-speed access to the Internet, is an interstate service and is properly tariffed at the federal level.
Which is why carriers providing DSL paid Universal Service support (paid only by Title II telecommunications carriers) until the FCC 2005 Reclassification Order.
[Funny story. The 2005 Reclassification Order phased out USF payments over the course of a year, but in 2006, rather than dropping the USF fee, the carriers tried to keep charging customers for a fee they no longer had to pay. Then Kevin Martin threatened to investigate the Bells for false billing, and they backed off.]
Ah, those whacky Bells. First they beg to have DSL classified as Title II, they charge subscribers USF fees which only get charged for telecommunications services, then they get DSL reclassified as Title I information service. Then they try to keep charging subscribers for USF fees they no longer owe. Now they want to claim they were never even a Title II service in the first place. To paraphrase Mr. Hulquist, I can see why AT&T would peddle this stuff, and I could see why folks unfamiliar with the last 20 years of telecom/broadband access regulation would believe it. But given the exciting archival nature of the internet, why does Mr. Hulquist think nobody will look this stuff up and call him on it?
Hulquist is using an old lobbyist mind control trick. Those familiar with how “end of life counselling” became “death panels” will recognize the basic technique. I called the Bells and the rest of their buddies out on this nonesense when they tried to sell this line to the FCC back in February. Hulquist and others keep trying to take language from this 1998 Report on why dial up ISPs and others did not pay into the Universal Service Fund (which, as I just noted above, DSL providers did pay, and passed through to their subscribers). To be fair to Hulquist and the other LEC boys trying to push this line (although, as usual, AT&T is out front when it comes to this sort of silly season busness), Hulquist is right in one respect. Until the Cable Modem Order in 2002 (and as chronicled at length by the Supreme Court in the Brand X case), the FCC required that telcos (like today’s AT&T) to separate the “underlying transmission” (the DSL/ADSL capacity) from the “enhanced service” (the ISP part) and lease the transmission part to rival ISPs. In fact, telcos couldn’t even offer DSL or other “internet access services” directly. They had to have a separate affiliate, so that everyone could make sure that telcos played fair and sold DSL at the same rates and terms to rival providers as they did to themselves. We used to call this “structural separation” or “line sharing.” So while the DSL was regulated, the separate ISP was merely “subject to Title I” and the FCC “forbore” from regulating it. Because it actually regulated the underlying DSL transmission as a Title II telecom service.
So I will offer this deal to Mr. Hulquist and the rest of his revisionist buddies. If “the FCC has never regulated any type of Internet access under Title II,” why don’t we all just go back and repeal the FCC’s 2005 Wireline Framework and go back to the rules as they existed under the GTE Tariff. You all can go back to leasing your last-mile DSL lines to rivals under Title II, and you can putter along beside them with your separately affiliated Title I ISP, operating under the same terms and conditions as folks like Earthlink or anyone else that wants to lease the underlying transmission facility. Cause hey, if DSL was never regulated and Oceania has always been at war with Eastasia, why shouldn’t we just go back to the way it was? I mean, I was pretty sure I remembered DSL being reclassified, but if I’m wrong about that and your right, we should just put everything back the way it was and stop arguing.
About Harold Feld
Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” (Public Knowledge & Roosevelt Institute 2019) a guide on what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Circuit Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”