**STATEMENT OF COMMISSIONER**

**MICHAEL J. COPPS, CONCURRING**

** **

Re:       *Appropriate Regulatory Treatment for Broadband Access to the
Internet Over Wireless Networks*.

 

            I concur in today's decision not because I like it.  Not
because I think it's the right thing to do.  But because in light of the
Commission's post-*Brand X* decisions, today's outcome has long been
inevitable.  I nevertheless want to reiterate my view that consigning
broadband services to an indeterminate Title I regulatory limbo is no
substitute for a genuine national broadband strategy.  It doesn't give
either businesses or consumers the kind of certainty that they are
entitled to.  And I simply cannot accept, when the stakes are so high,
that deferring difficult decisions---rather than actually making
them---constitutes a responsible regulatory framework.

 

            To be sure, we have clarified certain questions about E911
and CALEA and decided (unwisely in my view) that broadband providers
need not contribute to Universal Service.  But we still haven't
addressed important questions about such things as privacy, disabilities
access and the future of the Internet.  I hope that we will move
expeditiously to patch these alarming holes in the leaky roof we have
created.  Until we do so, I fear it will be the American public that
gets soaked. 

 

            Moreover, the multi-faceted nature of wireless services and
devices raises a whole host of novel questions that today's *Order* does
not even ***attempt*** to answer.  For instance: consider a cutting-edge
device like Apple's much-anticipated iPhone, which allows a user to
communicate via IP-based Wi-Fi technology as well as traditional CMRS
service.  Under our precedent, a consumer who uses the CMRS features of
the device to place a phone call can be secure in the knowledge that our
Title II CPNI rules require the carrier to protect his or her call and
location information.  But what about when that very same consumer uses
that very same device just moments later to send an email via Wi-Fi, to
call up a map of his or her location via a browser, or even to place a
VoIP call to another Internet user?  Because *those* services---which
the customer can be excused for thinking of as functionally identical to
the CMRS call---are now classified as Title I information services, the
carrier appears to be entirely free, under our present rules, to sell
off aspects of the customer's call or location information to the
highest bidder.  *Caveat emptor*, indeed!

 

            Finally, I would like to point out one additional---and more
promising---aspect of today's decision.  Back in 2005, the Commission
issued a policy statement adopting four principles applicable to
Internet access services, including that "consumers are entitled to
connect their choice of legal devices that do not harm the
network."[^1]  Now that IP-based wireless services are classified as
Title I information services, the inescapable logical implication of our
2005 decision is that the right to attach network devices---as well as
the three other principles of our policy statement---now applies to
wireless broadband services. 

 

            I believe the Commission accordingly has a clear and
pressing responsibility to open a rulemaking that will clarify how these
Title I principles should be applied in the wireless context.  I also
believe we should include questions about how and whether the
classification of CMRS services as Title II services incorporates the
principle of the seminal 1968 *Carterfone* decision.[^2]  I believe that
our answers to these questions---or our failure to answer them---will
have a direct impact on the pace of technological innovation in the
years ahead and on the extent to which consumers can take full advantage
of that innovation.    

 

            Indeed, as the Commission has already recognized in a host
of areas---such as *Carterfone*'s discussion of the PSTN, our 2005
Policy Statement's discussion of the Internet, and our rules on cable
set-top boxes---consumers generally benefit when they can select from
among a range of network attachments, including devices not chosen for
them by their service provider.  Indeed, without these decisions,
groundbreaking devices like the fax machine and dial-up modem---which
provided most of us with our first taste of the Internet---would never
have become so commonplace and so inexpensive so quickly.  Nor is it
likely that so many of us would have set up home networks and Wi-Fi
routers if service providers were free to charge us an extra fee for
doing so.

 

             In light of the enormous benefits that the Commission's
device attachment rules have enabled for so many of the networks
regulated by the Commission, I would have preferred that today's
reclassification item contain an NPRM teeing up these issues for
wireless networks.  I certainly hope that my colleagues will join me in
taking up these important questions soon.  There is so much potential in
wireless broadband---for consumers and entrepreneurs both---and our
challenge is to do everything we can to make sure the promise of these
pioneering technologies is redeemed.

[^1]: Policy Statement, FCC 05-151, at 3 (2005) (citing *Hush-A-Phone
    Corp. v. United States,* 238 F.2d 266, 269 (D.C. Cir. 1956); *Use of
    the Carterfone Device in Message Toll Telephone Service*, 13 FCC 2d
    420 (1968)) (The other principles are:  "\[C\]onsumers are entitled
    to access the lawful Internet content of their choice. ... 
    \[C\]onsumers are entitled to run applications and use services of
    their choice, subject to the needs of law enforcement. ... 
    \[C\]onsumers are entitled to competition among network providers,
    application and service providers, and content providers.")

[^2]: *See id*.