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Abstract:
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"In the U.S., the regulatory jurisdiction of the federal and state governments over services provided through the Internet is in flux and has become increasingly unstable. This instability is exemplified by the network neutrality debate, which has become a legal battle over classification of broadband Internet access services as a 'telecommunications service' or 'information service' under the federal Communications Act of 1934, as amended by the Telecommunications Act of 1996. In pursuit of deregulatory policies – whether sought by policymakers or entities seeking to avoid regulation – service classification has become the focal legal tactic to avoid federal and state government regulation. The instability of service classification of broadband Internet access services by the FCC has shifted back and forth since about 2000, depending upon whether the majority of FCC commissioners has been appointed by the Republican or Democratic Party. This same legal tactic of focusing on service classification is also being utilized to challenge the scope of federal and state regulatory authority over interconnected voice-over-Internet Protocol service (I-VOIP), which consumers find indistinguishable from traditional, time-division multiplexing (TDM-based) voice telecommunications services. However, the legal battle over classification of I-VOIP is of less prominence in the popular press or public awareness — at least in part, from the relatively lower profile of the classification issue before the FCC. The FCC started a proceeding to address classification of I-VOIP in 2004 in IP-Enabled Services, 19 FCC Rcd. 4863 (2004), but the proceeding is still pending. Rather, the issue has recently been litigated in a case before the federal 8th Circuit Court of Appeals, Charter Advanced Services v. Nancy Lange, in her official capacity as Chair of the Minnesota Public Utilities Commission, No. 17-2290 (hereinafter 'Charter Advanced Services v. MN PUC'). In September 2018, the 8th Circuit Court upheld a federal district ruling, finding that Charter Advanced Services’ I-VOIP service is an “information service” under federal law, and is thereby preempted from Minnesota state regulation. This is the first decision by any federal Circuit Court of Appeal as to the ruling of service classification of I-VOIP service. The MN PUC filed a petition for rehearing en banc before the 8th Circuit Court of Appeals, which was denied in December 2018. Through success of this legal tactic of service classification, businesses based on provision of services through the Internet have been emboldened to manipulate technical aspects of providing service for the purpose of avoiding regulation. Taken to the limit, this could lead to a de facto repeal of telecommunications service regulation. As to potential governance of the 'Internet of Everything', it is critical that discussion proceed from awareness of this U.S. legal landscape and context, which affects not only U.S. regulation but U.S. participation in or impact on international governance developments."
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