Tomorrow, NCTA will be submitting comments to the FCC in response to the Notice of Proposed Rulemaking adopted and released this past May. This rulemaking—prompted by the D.C. Circuit’s decision in Verizon v. FCC to vacate significant portions of the Commission’s 2010 Open Internet Order—is an opportunity for the Commission to assess the current state of Internet openness and to consider again what rules may be necessary to preserve important Internet freedoms.
As we say in our comments (and as we’ve said before), we remain skeptical that new rules are necessary to achieve that result, but if new rules are considered, we feel strongly that they should be built within a framework that encourages continued investment and innovation in broadband networks. Above all, that means the Commission must reject the calls of extreme voices that wrongly suggest that the only acceptable course for the Commission to take is to turn back the clock on progress by reclassifying broadband as a Title II common carrier service.
For well over a decade, both Democratic and Republican policymakers confronted with the promise of high-speed Internet access have embraced a ‘light touch’ regulatory model that has spurred unprecedented levels of investment in our nation’s broadband infrastructure. America has only four percent of the world’s population yet is home to nearly 25 percent of global broadband investment. Imposing the complex framework of Title II regulation not only is unnecessary to achieve the Commission’s core objectives of promoting an open, productive Internet, but would seriously undermine those objectives by imposing costs and regulatory restrictions that would deter ongoing investments and innovation.
Title II reclassification would likely fail to survive judicial scrutiny.
Not only would Title II reclassification be misguided from a policy perspective, but it would also likely fail to survive judicial scrutiny. Indeed, the FCC’s original decision in 2002 finding that cable’s broadband offering was an “information service” and not a “telecommunications service” was not simply a policy determination but was based on the statutory definitions of those terms and a factual analysis of the nature of broadband Internet access service – an analysis upheld by the Supreme Court. Neither the definitions nor the relevant facts have changed, and the Commission would have a hard time explaining a complete reversal of its prior determination.
Contrary to what some alarmists may claim, these are not drastic times, and they certainly do not call for drastic measures like a wholesale change in our approach to broadband regulation. As the DC Circuit’s Verizon decision makes clear, the FCC has sufficient authority under Section 706 of the Communications Act to promote broadband deployment and to protect an open Internet. If further action is necessary, it can be done in a manner that will avoid the tangible harms of Title II, that can be firm enough to prevent unreasonable discrimination, that can be flexible enough to consider new facts and circumstances as the Internet continues to grow and evolve, and that can be both platform and application agnostic. We welcome the opportunity to work closely with the Commission and other interested parties in charting a path forward that will assure an open Internet so that consumers can be secure in knowing that the investment, innovation, growth, and high quality that have characterized the Internet today will continue throughout its history.