The Telecom Act of 1996 Requires the FCC to Classify Commercial Internet Access as a Telecommunications Service

Thousands of papers and comments have been written about what Open Internet policies would best serve the public interest, and thousands more have been written about whether better Open Internet policies could be supported by calling Internet access a telecommunications service under Title II of the Communications Act or an information service. Even the authors of this comment have written about these topics.123 However, this particular comment will address neither of these topics. Instead, it will consider only whether or not commercial Internet access is or is not a telecommunications service under current law. Although many issues are delegated to the FCC as an expert agency, the FCC is still required to follow the laws passed by Congress and signed by the President, and the FCC’s discretion has bounds. In this matter, we find that the Communications Act of 1934 as modified by the Telecommunications Act requires the FCC to define commercial Internet access as a telecommunications service. Opinions will differ as to whether this is a good or bad result for the future of the Internet, but this question is outside the scope of this comment.