Wickard for the Internet? Network Neutrality after Verizon V. FCC

IV. Title II Reclassification Many network neutrality proponents regard the Verizon court's prohibition on using section 706 to impose common carriage obligations as an insuperable barrier to the type of nondiscrimination mandate that they regard as the most critical. (168) These advocates believe that the only way to achieve a blanket nondiscrimination mandate would be to reclassify broadband access services under Title II, thereby enabling the FCC to impose common carriage regulation. (169) However, the FCC has repeatedly ruled that broadband access services are information services that are exempt from common carriage regulation, rather than telecommunications services that are subject to common carriage regulations. (170) The Supreme Court upheld this determination as a reasonable interpretation of the Communications Act in Brand X. (171) The FCC floated the possibility of reclassifying broadband access as a Title II service while considering the Open Internet Order, relying exclusively on Justice Scalia's dissent in BrandX. (172) The agency ultimately declined to pursue reclassification, but made it a point to leave the Title II option open. (173) A. Legal Barriers to Reclassification I have addressed at length the problems with Title II reclassification elsewhere and will only sketch my objections here. The FCC's construction of the statute is subject to Chevron deference. As Brand X made clear, Chevron does not preclude the FCC from changing its mind so long as it justifies its change in position. (174) The fact that the FCC has ruled on six separate occasions that broadband access is an information service and not a telecommunications service does not prevent it from revisiting that decision. To say that the agency may reevaluate its construction, however, does not relieve it from satisfying Chevron's standard of review. Chevron Step one requires that the statute's text not foreclose the proffered construction of the statute. (175) If Congress has directly addressed the issue, congressional intent controls. (176) The language of the statute forecloses classifying broadband access as a telecommunications service. The statute defines a "telecommunications service" as a provider that offers for a fee directly to the public "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." (177) The FCC has characterized this as "pure" transmission that does not involve computer processing or storage. (178) The problem is that much of the world's web content is served by content delivery networks ("CDNs"), which store popular web content in thousands of locations around the world. For example, market leader Akamai uses nearly 150,000 servers throughout the network to serve 30% of the world's web content and rely on the domain name system ("DNS") to determine from which cache it should serve any particular request. (179) The Supreme Court has upheld the conclusion that the DNS and caching functions associated with the typical broadband access service inevitably involve both computer processing and storage and thus take broadband access outside the scope of Title II. (180) The statutory requirement that the transmission take place between points specified by the end user is even more problematic. On the Internet, physical locations are addressed by the numbers of an Internet Protocol (IP) address, which in the case of IP version 4 is usually represented by four numbers between 0 and 255 separated by dots (such as 128.91.34.233, which is one of the IP addresses assigned to the University of Pennsylvania). (181) Although the National Science Foundation is currently studying a proposal to restructure Internet addresses so that they refer to particular content rather than particular locations, (182) until such a proposal is adopted, the address architecture will continue to focus on physical addresses. …