Clarifying What is “Regulating the Internet?”

The Wall Street Journal reports that FCC Chairman Genachowski told them:

  • “I don’t see any circumstances where we’d take steps to regulate the Internet itself,” Genachowski said Tuesday, during a meeting with Wall Street Journal reporters and editors. “I’ve been clear repeatedly that we’re not going to regulate the Internet.”

The big open question now is what exactly is “the Internet itself” to which the FCC Chairman is referring?

  • Is FCC Chairman Genachowski’s definition of “the Internet” compatible with Congress’ definition of “the Internet” in Section 230(f)(1) of the 1996 Telecom Act?
    • The term ‘Internet’ means the international computer network of both Federal and non-Federal interoperable packet switched data networks.”

     

  • Is FCC Chairman Genachowski’s definition of “the Internet” compatible with the FCC’s current and operative definition of “the Internet” in its unanimous 2005 Broadband Policy Statement?
    • “1 The Internet is “the international computer network of both Federal and non-Federal interoperable packet switched data networks.” 47 U.S.C. § 230(f)(1). The Internet is also described as “the combination of computer facilities and electromagnetic transmission media, and related equipment and software, comprising the interconnected worldwide network of computer networks that employ the Transmission Control Protocol/Internet Protocol or any successor protocol to transmit information.” 47 U.S.C. § 231(e)(3).”
  • Is Chairman Genachowski’s definition of “the Internet” compatible with the U.S. Supreme Court’s definition of “the Internet” in its 2005 Brand X decision?
    • “The Supreme Court has described the Internet as a “network of interconnected computers.” National Cable & Telecommunications Ass’n v. Brand X Internet Services, 125 S. Ct. 2688, slip op. at 2 (2005) (NCTA v. Brand X); see also Reno v. ACLU, 521 U.S. 844, 849-50 (1997).

Since the broadband networks of competitive broadband providers that would be regulated under the FCC’s proposed Open Internet regulations are unquestionably:

  • “non-Federal interoperable packet switched data networks”;
  • “computer facilities and electromagnetic transmission media, and related equipment and software”; and
  • “employ the Transmission Control Protocol/Internet Protocol” …
  • … it seems logical and clear that broadband networks are in fact an integral and inseparable part of “the Internet” as Congress, the FCC, and the Supreme Court currently defines it.

    In closing, it appears that the FCC would have to somehow change the longstanding official definition of “the Internet” in order to both formalize the proposed Open Internet regulations and also be able to fairly represent that those Open Internet regulations don’t in fact “regulate the Internet.”

    • The difficulty of that scenario is what would be the legal, policy and technology basis for excluding only broadband networks from a new definition of “the Internet” when so many other entities perform so many technological functions so highly similar to broadband networks?
    • Moreover, what would be the FCC’s authority and justification for changing Congress’, the previous FCC’s, and the Supreme Court’s settled definition of “the Internet”?

     

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