FCC Classifies Wireless Broadband as an Information Service

On March 23, 2007 the FCC released a declaratory ruling classifying “wireless broadband Internet access service” as an information service and therefore not subject to regulation under Title II of the Communications Act. Further, the FCC determined that wireless broadband Internet access service is jurisdictionally interstate in nature thus generally precluding state and local regulation. In an effort to create regulatory parity between all broadband services, the FCC’s ruling puts wireless broadband service on the same regulatory footing as other broadband services, such as cable modem service, wireline broadband (DSL) Internet access service, and Broadband over Power Line (BPL) service. However, because most wireless service providers presently are also subject to FCC regulation under Title III of the Communications Act, this declaratory ruling likely will have limited practical impact on most wireless service providers.

The Commission acted on its own motion, without either a formal request from the wireless industry or for specific public comment, observing that numerous comments concerning the regulatory classification of wireless broadband Internet services had already been made in several other proceedings, including the IP-Enabled Services Proceeding and the Wireless Broadband Access Task Force Report. Although it classified wireless broadband in this declaratory ruling, by a 3-2 vote the FCC declined to resolve or issue a companion Notice of Proposed Rulemaking to determine whether the so-called “Carterphone” rules apply to wireless networks. Those rules generally give telecommunications service customers the right to attach any device of their choosing to a carrier’s network.

The key finding in the FCC’s declaratory ruling is that the provision of “mobile wireless broadband Internet access service” is not a “commercial mobile service” (CMRS) as that term is defined under Section 332 of the Act, leaving wireless broadband service to be regulated for the most part under Title I. The FCC explicitly stated that its ruling would not affect the applicability of Title III spectrum-related regulations to wireless broadband service providers and if a wireless broadband service provider is also providing CMRS, the carrier would continue to be subject to certain Title II regulations applicable to CMRS.

Despite finding that wireless broadband service is generally an unregulated information service, the FCC clarified that certain statutory requirements will nonetheless apply:

• Carriers providing both wireless broadband service and CMRS will have the same rights and obligations regarding interconnection under Section 251 as they would if they were just providing CMRS.
  
  
• Consistent with its earlier determination in the CALEA proceedings, CALEA obligations will apply to all wireless broadband Internet access providers, including mobile wireless providers.
  
  
• Any consumer protection obligations that are adopted later in the pending Consumer Protection in the Broadband Era NPRM,¹ such as restrictions on the use and disclosure of customer proprietary network information (CPNI), will extend to wireless broadband service providers.
  
  
• Wireless broadband service providers will continue to receive the benefit of Section 332’s prohibition of unreasonable zoning restrictions on the deployment of wireless infrastructure where those services are commingled with “personal wireless services” as defined in Section 332.
  
  
• Section 224’s guarantee of access to utility poles on just and reasonable rates, terms and conditions will continue to apply to providers of wireless broadband Internet services (for both wireless attachments and equipment associated with such attachments) as long as the provider’s broadband Internet service is “commingled” with telecommunications service.² The FCC noted that the question of whether standalone wireless broadband service, i.e., broadband that is not commingled with telecommunications or cable service, will be covered by 224 may be addressed in ongoing proceedings on pole attachment rulemaking petitions.

Footnotes

1 Consumer Protection in the Broadband Era, Notice of Proposed Rulemaking, 20 FCC Rcd. 14853 (2005).
2 Although the order did not state that wireless broadband Internet service also receives 224 protections when commingled with cable television service, that finding is implicit in the authority the FCC cites. See National Cable and Telecom Ass’n v. Gulf Power Co., 543 US 327 (2002).