On its July 17 deadline for accepting comment on its recent proposal to repeal Open Internet rules which reclassified broadband as a telecommunications service pursuant to Title II of the 1934 Communications Act, the FCC began the arduous task of sifting through an astonishing 9.7 million submissions that underscore the strength of widespread public sentiment with respect to Title II regulation of broadband. The vast majority of these submissions may be best described as cookie cutter-style “express” comments from individual citizens who oppose the FCC’s plan. Remaining comments, however, portray a sharp dividing line between telco and cable-based Internet service providers (ISPs) that advocate a return to Title I classification and public interest groups that believe a repeal of Title II regulation will lead to higher prices and fewer choices for consumers.
Monday’s comments respond to a Notice of Proposed Rulemaking (NRPM) which the FCC adopted on May 17 in hopes of restoring the regulatory status quo that was in place before the enactment of the FCC’s 2015 Open Internet order. The NPRM proposes to roll back Title II classification—and with it, common carrier regulation—of broadband Internet service providers (ISPs). In addition to requesting public input on the repeal of Title II classification, the NPRM also seeks to reclassify mobile broadband Internet access as a private mobile service. Stakeholder comment was also requested on (1) the proposed elimination of the “Internet conduct” standard prescribed by the Open Internet order, and (2) whether bright line rules established by that order, prohibiting ISPs from blocking or throttling the transmission of lawful web traffic and engaging in paid prioritization practices, should be retained, modified, or eliminated.
While emphasizing their strong support for an open Internet and for longstanding FCC principles of net neutrality, ISPs argued that a repeal of Title II classification would lift regulatory burdens, restore market certainty, boost investment, and restore the power of the Federal Trade Commission to protect ISP consumers. Describing the 2015 Open Internet order as an “unprecedented regulatory overreaction” that “grossly exaggerated the need for public utility style regulation while ignoring its costs,” AT&T urged the FCC to “restore the type of light-touch oversight that prevailed for all but the past two years of broadband’s twenty-year history.” As AT&T pledged to “conduct our business in a manner consistent with an open Internet,” Verizon echoed AT&T’s call to return broadband “to the long-standing, light touch, and bipartisan framework that successfully governed the Internet for most of its history.” Voicing doubt that a return to Title I classification will “leave consumers unprotected,” Verizon recommended: “the best answer is that Congress take on this issue once and for all” by adopting “an even-handed legislative approach [that] would protect the open Internet.”
Internet and television association NCTA, meanwhile, cited “a wide array” of studies in support of its view that the Open Internet rules have been “a drag on investment and innovation.” Maintaining that its members have “enshrined open Internet principles,” NCTA proclaimed: “there is no basis to conclude that prescriptive rules are necessary in today’s marketplace.” As it quipped that wireless ISPs “are not at all bashful in opposing the common carrier framework imposed by” the Open Internet order, wireless association CTIA lamented that the regulatory environment established through that order “creates intensive uncertainty that undercuts innovation and harms consumers.”
Nevertheless, consumer and public interest groups claimed not only that Title II regulation provides the best method of protecting broadband consumers but also serves as the correct legal foundation on which net neutrality regulation should be based. Arguing that broadband Internet access service “clearly fits the definition of a telecom service as written into law by Congress in 1996,” Free Press warned that a repeal of Title II classification “would be a mistake of epic proportions.” In joint comments, Public Knowledge and Common Cause said the FCC properly based Title II classification on the Communications Act definition of telecommunications service “as the ‘transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.’”
Federal, state and local lawmakers also lent their support to the current Title II regulatory regime. Observing that Internet access services “are wildly different than they were in 1998” when the FCC treated the Internet as an unregulated Title I information service, Senator Ron Wyden (D-OR) cautioned that, “without the strong protections of common carrier regulations, the broadband Internet providers of 2017 have both the means and the motivation to discriminate and profit from playing the Internet gatekeeper.” As Senator Al Franken (D-MN) maintained “there is no evidence that investment in broadband infrastructure has suffered in the years since ISPs were reclassified as common carriers under Title II,” a group of 62 mayors representing the cities of New York, San Francisco, and Washington, D.C. (among others) warned that a “full repeal” of the 2015 Open Internet order “poses a significant risk of . . . harming local economies across the country.”