The technologies that deliver content to consumers have begun to converge into a single Internet-driven conduit. Such convergence supports a consolidation of previously stand alone markets as evidenced by the ability of ventures to offer a “triple-play” bundle of Internet-delivered telephone service, video content and broadband access. Converging technologies and markets eliminate a sharp and identifiable distinction between the service classifications created by Congress and applied by the Federal Communications Commission (“FCC”). The Commission has experienced difficulty in maintaining a clear regulatory dichotomy between carriers operating as private conduits and ones having duties to provide access to the public subject to government oversight. The former can deliver content, software and services largely free of government regulation while the latter operate as common carriers bearing public utility obligations, such as the duty to provide service in a nondiscriminatory manner.
This paper will examine whether and how converging technologies and markets provide an opportunity for the FCC to impose more forms of quasi-common carrier duties on ventures that otherwise would qualify for limited or no regulation. The paper will examine a recent court affirmance of the FCC’s requirement that all cellphone companies provide subscribers of other carriers “roaming” access to data services as well as previous instances where quasi-common carrier duties were deemed lawful. The paper concludes that the FCC has found a way to impose quasi-common carrier duties on ventures providing convergent services even though these ventures appear to qualify for little, if any, regulation in their capacity as information service providers.