My 2 cents
So I took the time to read that 24-page white paper (thanks for the link, author!).
There are some strengths and weaknesses. Let's cover some strengths first:
"Under the plain terms of the statute, mobile broadband Internet access cannot be CMRS.
CMRS is a mobile service that makes “available to the public” an “interconnected service”—i.e.,
a service “that is interconnected with the public switched network.”"
"public switched network" used to imply the PSTN, which is a legitimate point. The only flaw being that it doesn't explicitly *state* PSTN. Still, it's a strength for Verizon's argument against treating wireless under Title II.
"Reliance interests are especially relevant here because the avowed and express purpose of
the Commission’s prior classification orders was to induce the billions in investment that have
Although the Supreme Court suggested in Fox that an agency may receive more
leeway for a policy change when its prior views on the question were equivocal, 556 U.S. at 518,
for almost two decades, the Commission has done precisely the opposite when it comes to
classifying broadband. The Commission has repeatedly and unequivocally interpreted the 1996
Act to exclude broadband from Title II."
Yeah, that one's going to hurt. The justices like doing economic analyses to decide law, and this is going to be painful for the FCC. On the other hand...
"...(reasoning that an agency must provide “a more complete explanation” when
changing its position either on “particular factual findings . . . or . . . on its view of the governing
law,” because then “one would normally expect the agency to focus upon those earlier views of
fact, or law, . . . and explain why they are no longer controlling""
That's a weakness, believe it or not. The justices didn't close the door, but again stated that they would need a reasonable argument, which might be challenging, but is probably possible to achieve. There are a lot of really smart lawyers out there in the world!
"Unbundling would create prohibitive complexities in delivering separate services;
customers would have to pay for both types of services, which would raise consumer costs; and
all of this would drive away consumers and providers from broadband service, thereby harming
the Commission’s goal of promoting broadband deployment."
I don't think there's any other passage in the entire paper that's more fluff. This is completely a matter of interpretation. All they have to do is redefine "broadband" (say, as 25Mbps) and suddenly deployment numbers drop, and unbundling COULD lower costs for some subset of users, meaning greater deployment. This one is way too easy to wipe away.
"There still is no way to use the Internet and to
access, utilize, retrieve or process the stored information available through web sites around the
world “without also purchasing a connection to the Internet,” "
This is both untrue and also because of bundling. Unbundle it. He goes on, though...
"Indeed, given developments in the nature of broadband services offered since the time of
Brand X, the conclusion that broadband Internet access is an integrated offering is even more
true today. The typical broadband Internet access services today use telecommunications to
perform even more information service capabilities than they did when Brand X was decided.
New parental controls, for example, allow customers to identify and filter inappropriate content.
Multiple e-mail accounts allow customers to store, access, utilize and make available
information. And on-line storage services are a common part of broadband Internet access
offerings and allow customers both to store information they retrieve on-line and then to access,
utilize, and further process that information. All of these information services are “functionally
integrated” services that “transmit data only in connection with the further processing of
information” and require the use of telecommunications."
None of the examples cited are fundamentally a part of the internet connection/access, therefore are not "functionally integrated," in spite of what Verizon wants you to believe.
Give me my IP address, or even just my L2 modem via Title II, and I'll bring you competitors for your L3 business. Here's to hoping the FCC sees it the same way.