Most telecom policy experts agree that it no longer makes sense for traditional telephone providers to maintain IP networks and the old copper network, often called the PSTN, for public-switched telephone network, used to deliver POTS, plain, old telephone service.
But the move to IP networks, jump-started in January with the FCC approving an AT&T request to run copper-retiring trials, raises complex policy questions about the authority of the FCC.
The appeals court decision on net neutrality came just two weeks before the FCC's approval of IP trials, with the court throwing out the agency's net neutrality regulations because of the FCC's own classification of broadband as an information service, not a telephone-style, common-carrier service.
The appeals court gave the FCC a workaround, however. The court pointed the agency to Section 706 of the Telecommunications Act, which gives the FCC broad authority to ensure broadband deployment. That section of telecom law, the court said, could be used as a hook to pass net neutrality rules.
Section 706 gives the FCC authority to protect customers on IP networks, the agency contends. When asked about the impact of the net neutrality ruling on the IP transition, an FCC spokesman pointed to a speech by agency Chairman Tom Wheeler in February.
"The FCC has the authority it needs to provide what the public needs -- open, competitive, safe, and accessible broadband networks," Wheeler said then. "Indeed, that we have authority is well-settled. What remains open is not jurisdiction, but rather the best path to securing the public interest."
Some telecom legal experts, including Feld and Wood, aren't as sure. Some telecom carriers, trade groups and free-market advocates are now questioning the FCC's regulatory authority on IP networks, and the new attitude seems to be, "presto, no need for any more commission oversight," Wood said.
One FCC regulation in doubt is its obligations on incumbent telephone carriers to build out their networks to serve all customers in a coverage area, Wood said. "If we're living in this twilight zone where broadband is not technically a telecom service ... it's hard to know how to enforce a build-out obligation," he added.
Public Knowledge has pushed the FCC to focus on five "fundamental" values supported by the current phone system: universal service, interconnection, consumer protection, network reliability, and public safety. The appeals court decision on net neutrality "particularly brings interconnection and universal service to mind because that case focused on no blocking and nondiscrimination rules, but they're not the only issues we're looking at in the phone network transition," said Jodie Griffin, senior staff attorney there.
The court decision "raises pretty clear concerns that the FCC won't be able to implement fundamental principles of the phone network like serving all users and connecting with other networks," unless the FCC reclassifies broadband as a regulated common-carrier service, she added. "So until the FCC uses its authority to call IP-based voice service telecommunications service, the one thing it can't do to the post-transition phone network is actually make it act like the phone network."
Still, some telecom experts say its time to retire some regulations along with the copper networks. The FCC's common-carrier rules, some of which date back to a time when the U.S. phone network was one giant monopoly, are outdated, some argue.