Congress Never Intended to Expand Traditional Telephone Regulations to Internet Service Providers

FCC Commissioner Michael O’Rielly, who helped craft the Telecommunications Act of 1996 when he was a staffer at the House Energy and Commerce Committee, has frequently pointed out that Congress never intended for the FCC to regulate the Internet. He knows because he was in the room when the 1996 Act was born. Though the DC Circuit Court of Appeals recently decided that Congress was ambiguous on this point, evidence indicates Commissioner O’Rielly is correct.

Shortly after the 1996 Act was passed, several senators, including prominent Democratic Senators John Kerry and Ron Wyden, sent a letter to then FCC Chairman William Kennard regarding the intent of the 1996 Act. (Download available HERE.) The letter states their “wish to make it clear that nothing in the 1996 Act or its legislative history suggests that Congress intended to alter the current classification of Internet and other information services or to expand traditional telephone regulation to new and advanced services.” (Emphasis added.)

The senators repudiated arguments calling for reclassification of ISPs:

Some have argued that Congress intended that the FCC’s implementing regulations be expanded to reclassify certain information service providers, specifically Internet Service Providers (ISPs), as telecommunications carriers. Rather than expand regulation to new service providers, a critical goal of the 1996 Act was to diminish regulatory burdens as competition grew. Significantly, this goal has been the springboard for sound telecommunications policy throughout the globe, and underscores U.S. leadership in this area. The FCC should not act to alter this approach.

It is not too late for the FCC to eschew Title II reclassification and embrace the market-driven approach to Internet regulation envisioned by Congress. The fact that the DC Circuit’s ruling permits the FCC to ignore Congressional intent does not mean the FCC must do so. It can choose to stay strong for Congressional intent.