ISPs Warn FCC Against Title II Regulation of Web Access

Verizon, Time Warner, AT&T, NCTA and others call idea a "profound mistake"

By John Eggerton -- Broadcasting & Cable, 2/22/2010 5:53:00 PM

Internet service providers (ISPs), with the notable exception of Comcast, fired off a letter to FCC Chairman Julius Genachowski Feb. 22 warning that trying to classify Internet access as a Title II service subject to common carrier regulations "would be a profound mistake with harmful and lasting consequences for consumers and our economy."

Some have advised the FCC that it might need to establish clearer authority to uphold network neutrality regulations by tying it to the telecommunications regulation under Title II of the Communications Act rather than regulate it under the lighter regime of information services, as the commission chose to do.

But the ISPs said that there were already "ongoing, productive efforts" to reach a consensus on how best to achieve the shared goal of an open Internet.

Pulling no punches, Verizon, Time Warner, AT&T, Qwest, the National Cable & Telecommunications Association and the wireless and phone company trade associations said that "at minimum" such regulatory reclassification would "plunge" the industry into "years of litigation and regulatory chaos." They didn't even get around to saying how much worse the "maximum" would be.

But they did suggest that reclassification could threaten the billions in investment that would be needed to achieve the government's goal of 100 MBps broadband speeds to 100 million households by 2020. They also say that a push by Free Press and Public Knowledge for invoking Title II, if necessary, would be eventually overturned in court, but only after years of "industry-destabilizing" uncertainty.

Calling it a "misguided regulatory overreach," they said the FCC should "keep this Pandora's Box of Title II Classification nailed shut."

"We'll defer comment on reclassification until the D.C. Circuit decides our challenge to the actions of the previous FCC on due process grounds," said Comcast spokesperson Sena Fitzmaurice.

A group of net neutrality rule supporters, including Consumers Union, Media Access Project and Public Knowledge, had advised the FCC to assert its authority for proposed new network neutrality rules by relying on both Title I authority to regulate information services and Title II authority to regulate telecommunications services.

In comments to the FCC in its rulemaking codifying and expanding of its Internet Policy Statement, one of thousands flooding the commission, the groups, collectively calling themselves the Public Interest Commenters (PIC), said that they believed the rules were sustainable under the Title I authority the FCC applied to cable modem and DSL service in 2005, but suggested it might be better to tie the rules to both.

Under Title I, ISP's are not subject to the mandatory access provisions of Title II regs that apply to traditional phone services. But the FCC has posited the authority to police Internet openness based on ancillary authority tied to its general Communications Act powers, an argument it made to a D.C. federal court in the BitTorrent case last month (Title I includes powers "reasonably ancillary to the effective performance of [its] various responsibilities" to regulate wired and wireless communications). But the judges suggested the commission needed to find a more specific statutory hook for its authority over the Internet.

Instead of relying on that general ancillary authority, the groups suggest, the FCC should tie that authority to Title II through the transmission element of Internet delivery--the pipes--rather than the content that flows through it.