**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.

## 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.

[^1]: *See* Communications Act § 621 (c), 47 U.S.C. § 541 (c)

[^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).