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 SEPARATE  STATEMENT  OF  CHAIRMAN  MICHAEL  K.  POWELL 
 Re:  Inquiry  Concerning  High-  Speed  Access  on  the  Internet  Over  Cable  and  Other  Facilities;  Internet  Over  Cable  Declaratory  Ruling;  Appropriate  Regulatory 


 Treatment  for  Broadband  Access  to  the  Internet  over  Cable  Facilities. 


 I.  Introduction 
 One  might  ask  what  is  in  a  name?  In  the  law,  a  great  deal.  When  Congress  crafts  legislation  it  defines  the  rights,  responsibilities  and  obligations  by  reference  to  particular 
 definitions  or  classifications.  In  the  multifaceted  world  of  communications  it  has  defined  the  rights  and  obligations  differently,  depending  on  the  nature  of  the  service  offered 
 without  regard  to  the  means  in  which  it  is  offered. 
 Thus,  the  Commission  has  an  inescapable  duty  to  determine  the  will  of  Congress  by  faithfully  applying  these  definitions  to  new  services.  This  is  not  an  easy  task,  given  all 
 communication  services  have  some  similar  and  overlapping  features. 
 II.  There  Are  Three  Statutory  Classifications 
 For  our  purposes,  there  are  three  essential  regulatory  definitions  under  the  statute,  each  having  different  regulatory  consequences:  “Telecommunications  service”  is  defined 
 in  47  U.  S.  C.  §  153(  46).  “Cable  service”  is  defined  in  Section  602(  6).  And  “information  service”  is  defined  in  the  United  States  Code  in  Section  153(  20). 


 If  one  looks  throughout  the  statute,  one  will  see  clearly  that  Congress  ascribed  different  regulatory  treatment  to  these  classifications  –  sometimes  more  regulatory 
 oversight,  sometimes  less.  For  example,  a  cable  service  provider  cannot  be  regulated  as  a  common  carrier  pursuant  to  the  statute.  1  Yet,  as  a  consequence  of  the  statute,  a 
 telecommunications  service  provider  is  regulated  as  a  common  carrier.  Most  importantly,  “information  service”  is  a  conscious  regulatory  classification  under  the 
 statute.  Not  only  is  it  defined,  there  are  specific  references  to  it  throughout  the  statute. 
 For  example,  the  Commission  under  its  discretion  can  extend  universal  service  obligations  to  providers  that  use  telecommunications  who  are  not  telecommunications 
 carriers  (who  must  contribute  to  universal  service).  This  indicates  Congress  recognized  classes  of  services,  other  than  telecommunications  service  that  may  have  to  be  reached  by 
 Commission  discretion,  rather  than  mandatory  application  under  the  statute.  Similarly,  the  schools  and  libraries  provisions  make  specific  reference  to  information  services  as 
 being  covered  by  the  provision,  entitling  schools  and  libraries  to  discounted  service.  Or,  one  can  look  at  the  network  sharing  provision  of  Section  259  and  see  specific  reference  to 
 information  service  as  well  as  telecommunication  services. 


 1  See  Communications  Act  §  621  (c),  47  U.  S.  C.  §  541  (c) 
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 III.  The  Classification  Is  Not  An  Exercise  In  Regulatory  Free  Will 
 The  Commission  does  not  have  unconstrained  discretion  to  pick  its  preferred  definition  or  classification,  as  some  imply.  The  Commission  must  attempt  to  faithfully 


 apply  the  statutory  definition  to  a  service,  based  on  the  nature  of  the  service,  including  the  technology  used  and  its  capabilities,  and  the  nature  of  the  interactive  experience  for 
 the  consumer.  This  “is  complex  and  subject  to  considerable  debate  and  .  .  .  appropriately  left  to  the  expertise  of  the  FCC.”  2 


 The  Commission  is  not  permitted  to  look  at  the  consequences  of  different  definitions  and  then  choose  the  label  that  comports  with  its  preferred  regulatory 
 treatment.  That  would  be  contrary  to  law.  The  Commission  must  apply  the  definition  and  then  accept  the  regulatory  regime  that  adheres  to  that  classification  and  that  which 
 Congress  chose  when  it  adopted  the  statute. 
 IV.  Commission  Is  Not  Neutered  By  This  Classification 
 The  Commission  is  not  left  powerless  to  protect  the  public  interest  by  classifying  cable  modem  service  as  an  information  service.  Congress  invested  the  Commission  with 
 ample  authority  under  Title  I.  That  provision  has  been  invoked  consistently  by  the  Commission  to  guard  against  public  interest  harms  and  anti-  competitive  results. 


 It  was  this  Commission  that  promulgated  Computer  I,  Computer  II  and,  Computer  III,  (all  under  Title  I)  in  an  effort  to  protect  against  public  interest  harms,  all 
 with  the  blessing  of  judicial  review  and  court  sanction  of  its  ancillary  authority.  Additionally,  Title  VI  is  a  direct  progeny  of  the  Commission’s  assertion  of  jurisdiction 
 over  cable  services  under  its  Title  I  authority  and  has  regulated  cable  extensively  for  a  number  of  years  under  that  authority.  This  exercise,  too,  was  approved  by  the  Supreme 
 Court  as  within  the  congressional  scheme.  3 
 There  is  no  basis  to  conclude  that  Title  I  is  inadequate  to  strike  the  right  regulatory  balance.  The  Commission’s  willingness  to  ask  searching  questions  about 
 competitive  access,  universal  service  and  other  important  policy  issues  demonstrates  its  commitment  to  explore,  evaluate  and  make  responsible  judgments  about  the  regulatory 
 framework. 


 2  MeidaOne  Group,  Inc.  v.  County  of  Henrico,  257  F.  3d  356  (4  th  Cir.  2001). 
 3  United  States  v.  Southwestern  Cable  Co.,  392  U.  S.  157  (1968). 
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