Client Alert

On March 23 the FCC issued the text of a Declaratory Ruling which concluded that wireless broadband Internet access service is an "information service" under the Communications Act, as amended (the "Act"), and therefore exempt from traditional common carrier regulation under Title II. While the FCC's order was consistent with its past decisions finding that broadband services provided by cable companies, traditional wireline carriers and over power lines are also information services not subject to Title II regulation, this decision was unusual because it was adopted on the Commission’s own motion in the context of a newly created docket that was open for public comment. Further, the action taken by the Commission was not sought or advocated by any party or industry group. Instead, the FCC relied on the record of two prior proceedings that addressed tangentially the proper regulatory classification of wireless broadband Internet access, the IP-Enable Services NPRM and the Consumer Protection in the Broadband Era NPRM. The action was foreshadowed by Chairman Martin at Hill oversight Committee, and appears to be part of a larger “clean-up” effort underway at the Commission.

Key Conclusions of the Order

• The order applies only to terrestrial wireless broadband offered by traditional CMRS carriers and does not address satellite broadband services.
• The transmission component of wireless broadband Internet access service is "telecommunications" and the offering of the telecommunications transmission component as part of a functionally integrated Internet access service offering is not "telecommunications service" under section 3 of the Act.
• Broadband transmission is not a "telecommunications service" when provided to an Internet Service Provider ("ISP") as a wholesale input for the ISP's own wireless broadband Internet access service offering.
• Classification of broadband Internet access service as an information service does not affect the applicability of spectrum allocation and licensing provisions under Title III of the Act.
• Wireless broadband Internet access service is not a “commercial mobile service” under section 332 of the Act because it is not an “interconnected service” and does not allow users to communicate with all users of the PSTN. The Commission noted, though, that this finding does not decide the issue of whether other services, such as interconnected VoIP services are “interconnected services” for purposes of section 332, an important fact, given the anticipated proliferation of wireless VoIP applications.
• Where a wireless broadband service provider uses the same pole attachments to provide both telecommunications and wireless broadband Internet services, the pole attachment provisions of section 224 of the Act are applicable.
• Local authority over zoning continues to apply where a wireless service provider uses the same infrastructure to provide "personal wireless services" and wireless broadband Internet access services.
• Carriers providing both CMRS and wireless broadband Internet access services have the same rights and obligations regarding interconnection under section 251 of the Act (or section 20.11 of the Commission’s rules) that they would have if only providing CMRS.
• Any consumer protections adopted in the Consumer Protection in the Broadband Era NPRM will apply to wireless broadband Internet access services.

Womble Carlyle's Communications Attorneys

Howard J. Barr

Ross A. Buntrock (202) 857-4479

John F. Garziglia (202) 857-4455

Peter Gutmann (202) 857-4532

Michael B. Hazzard (202) 857-4540

Mark J. Palchick (202) 857-4411

Michael H. Shacter (202) 857-4494

Gregg P. Skall (202) 857-4441