Delete FCC Common Carrier Exemption, FTC Official Says
An exemption giving the FCC, not the Federal Trade Commission, jurisdiction over communications companies as common carriers no longer may make sense given telco deregulation and convergence of communications technologies, panelists said Wednesday at a Federal Communications Bar Association lunch. Recent FCC forbearance decisions and service bundling by telcos and cable companies can complicate assignment of jurisdiction, they said.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
It’s unclear whether FCC forbearance orders mean a shift of regulatory responsibility to the FTC, said communications lawyer John Heitmann. Under Title II of the Communications Act, known as the common carrier exemption, the FCC has jurisdiction over carriers providing public phone service. But the FTC regulates private carriers that negotiate their own business terms. An FCC broadband forbearance order last week letting AT&T sell high capacity enterprise broadband services on a private rather than common carrier basis may mean the FCC is handing regulatory reins over to the FTC, Heitmann said.
The FCC may not completely lift oversight, said Matthew Brill, ex-aide to FCC Commissioner Kathleen Abernathy. “I'm not sure the FCC would characterize the [order] as authorizing private carrier service,” he said. It actually may mean common carriage with tariff and certain other relief, he said. Even so, the FCC can discern between common and private carriers simply by seeing how the carrier operates, he said: “Even if there’s no mandate, if AT&T were to offer service in a certain manner so that it was deemed a common carrier, that would be its status.”
Triple plays and other service bundling also are raising jurisdictional confusion, leading the FTC to push for removal of the common carrier exemption, said Maureen Ohlhausen, director of FTC Policy Planning office. The FCC doesn’t regulate information services like broadband Internet, leaving that to the FTC. But the FTC fears it might lose that jurisdiction over information services if they're bundled with a common carrier service that the FCC regulates, she said. The FTC focuses on enforcement, while FCC is concerned more with rulemaking, Heitmann said. Common carriers could use bundles to escape tough FTC policing and “keep themselves in a kinder enforcement environment over at the FCC,” he said.
The bundling issue will get more complex as technologies converge, Brill said. “You could easily envision the distinctions blurring, and the now separate services really becoming separate components of a single service,” he said. “That is a good reason to get rid of the common carrier exemption.”