CDT supports the Commissionʼs suggested “third way” approach of classifying the connectivity function of Internet access service as a “telecommunications service” while simultaneously forbearing from all but a core set of statutory provisions under Title II of the Communications Act.
For legal as well as policy reasons, the Commission should expressly limit its action to this connectivity function, as proposed in the NOI. Indeed, the Commission should go one step further and expressly disclaim legal authority over Internet content and applications. Articulating a sound and legally stable conception of its own jurisdiction would minimize the risk of future legal misadventures.
By contrast, relying on ancillary authority would leave the Commission with a highly unstable legal foundation that would take many years to sort out. CDT and other commenters can do no more than speculate at this point about how courts might rule in individual cases. CDT does not believe it is tenable for the federal communications regulator to lack any clear and stable conception of the scope of its jurisdiction over the service people use to access the core communications network of the 21st century.
Meanwhile, the facts of todayʼs marketplace strongly support classifying Internet connectivity as a telecommunications service. Consumers purchase Internet access service for the ability it offers to connect to the Internet, which in turn gives them a gateway to independent content and services of all kinds. There is thus no need for Internet users to rely on their access provider for information service functions such as email, newsgroups, web page hosting, or content aggregation. Other functions that an access provider may perform are best viewed as “adjunct- to-basic” services that merely support the efficient operation of the connectivity function.