Congressman Fred Upton (R-Michigan), senior member and former chairman of the House Subcommittee on Communications, Technology and the Internet, made the following statement regarding today’s decision by FCC Chairman Julius Genachowski to regulate the Internet. This Tuesday, Upton had urged Chairman Genachowski to preserve the Clinton-era regulatory classification of broadband services as ‘information services.’

“It is perplexing that the FCC, despite having the luxury of the Circuit Court’s wisdom and guidance on broadband, has chosen to abruptly embark down the road less traveled of red tape and regulation under Title II. The FCC’s blatant disregard of the Court’s decision is ill-advised as we should be pursuing policies that unleash investment and innovation at a time when our economy is desperate for growth. Since the Clinton administration, we have seen the Internet flourish under a relatively regulation-free approach and an astounding 95 percent of households now have access to broadband. It should be consumers, not government regulators, who determine the future evolution of broadband.”

The text of Upton’s May 4th letter to Genachowski follows below:

The Honorable Julius Genachowski
Chairman
Federal Communications Commission
445 12th Street, S.W.
Washington, DC 20554

Dear Chairman Genachowski:

In the wake of the Comcast decision, reports indicate that the Federal Communications Commission (FCC) may attempt to change the regulatory classification of broadband services from ‘information services’ to ‘telecommunications services.’ Some advocates of this reclassification argue that the FCC would simply be reversing a bad policy judgment made by the agency during the Bush administration to subject broadband services to the less-regulatory statutory framework afforded to information services under Title I of the Communications Act (the Act).

Contrary to this self-serving view, the classification of broadband services as information services is rooted in the clear meaning of the Act, the proper interpretation of the Act by the Clinton administration, and the Clinton administration’s conclusion that Title I provides the appropriate policy framework in which broadband services will flourish. While actions often do speak louder than words, it is the Clinton administration’s own words that demonstrate that the classification of broadband services as information services and the creation of a deregulatory broadband framework pre-date the Bush administration.

In a 1998 Report to Congress, the FCC concluded that “when an entity offers transmission incorporating the ‘capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information,’ it does not offer telecommunications. Rather, it offers an ‘information service’ even though it uses telecommunications to do so.” In that report, the FCC determined that “Internet access services are appropriately classed as information, rather than telecommunications, services.”

The FCC based its conclusion on the statutory definitions of ‘telecommunications services’ and ‘information services,’ as well as an analysis of the characteristics of Internet access services. In particular, the FCC asserted that “[Internet access providers] conjoin the data transport with data processing, information provision, and other computer-mediated offerings, thereby creating an information service.”

But the FCC also warned about the “negative policy consequences” of classifying broadband services as telecommunications services: “[a]n approach in which a broad range of information service providers are simultaneously classed as telecommunications carriers, and thus presumptively subject to the broad range of Title II constraints, could seriously curtail the regulatory freedom that the Commission concluded in Computer II was important to the healthy and competitive development of the enhanced-services industry.” The FCC concluded that “we note that classifying Internet access services as telecommunications services could have significant consequences for the global development of the Internet. We recognize the unique qualities of the Internet, and do not presume that legacy regulatory frameworks are appropriately applied to it.”

Chairman Kennard and Commissioner Ness elaborated upon their reasons for affirming the classification of broadband services as information services. Chairman Kennard asserted that “as we refrain from treating Internet service providers as telecommunications providers, we promote the growth of Internet services.” Commissioner Ness emphasized that the FCC “[did] not intend to regulate” Internet access services.

Commissioner Ness concluded that “the Commission [was] renewing its determination that the Telecommunications Act should be read to affirm the unregulated status of information services, including Internet access services.” She also stressed that “I firmly believe that this decision is supported by the statute and the legislative history, and that it has stimulated and will continue to promote desirable investment and innovation.”

In 1999, Chairman Kennard also dispelled the myth that a deregulatory framework for broadband services somehow implies that the FCC is simply abdicating its responsibility: “it is in the national interest that we have a national broadband policy. The FCC – as I've said before – has the authority to set one, and we have. We have taken a deregulatory approach, an approach that will let this nascent industry flourish.”

The broadband framework adopted by the Clinton administration has been enormously successful. It has stimulated tens of billions of dollars in broadband investment, created thousands of jobs, and resulted in, by the FCC’s own count, the availability of broadband services to 95 percent of housing units in the United States. While we need to focus on facilitating broadband deployment to unserved areas, it would be irresponsible to reverse the Clinton administration’s proper classification of broadband services and deregulatory framework, which have been so successful in making broadband available to the overwhelming majority of Americans.

Sincerely,

Fred Upton
Member of Congress