UC Law SF Communications and Entertainment Journal


Kendall Koning


Since the Supreme Court's decision in National Cable Telecommunications Association v. Brand X Internet Services, many legal scholars have considered the question of whether the FCC may choose to regulate Internet access as an information service to be settled law. And, for the second time in five years, the D.C. Circuit in Verizon v. FCC struck down the jurisdictional theory relied upon by the FCC in creating its Open Internet rules because the FCC still classified Internet connections as information rather than telecommunications services. In response, and after a vigorous public debate, the FCC recently reversed its classification and grounded the network neutrality rules firmly in Title II of the Telecommunication Act. The view of Internet Service Providers as intermediaries that necessarily store or transform user data is anachronistic, likely taken from the operation of ISPs' most visible predecessors, online services like CompuServe and America Online. Further, the issue in Brand X was the unbundling of last-mile cable modem transmission facilities, not an end-to-end Internet Protocol service. Drawing on a detailed analysis of the regulatory treatment of protocol processing in the Computer Inquiries and the technical structure of Internet Protocol networks themselves, this article explains why the reclassification was unavoidable and argues that conventional wisdom is mistaken.