The American Cable Association continues to argue that the FCC need not and should not reclassify Internet access as a Title II common carrier service to any cable operators, full stop. But if the FCC is not stopped by those arguments, says ACA, it should exclude smaller operators from the new regulatory regime.
In a Jan. 12 filing with the commission, ACA says that the FCC lacks the authority to compel common carrier status on ISPs simply to achieve policy objectives. That, it says, would be against the law and exceed the FCC's authority.
But FCC chairman Tom Wheeler has suggested he had an "aha" moment when considering how wireless phone service had flourished under Title II and signaled last week that the FCC was likely to apply Title II to wired, and likely wireless, broadband access services, at least the parts that would prevent blocking, discrimination and paid priority.
ACA says that assuming, for the sake of argument, that the FCC did go that route, it should forbear (not apply) any Title II regs to smaller operators, including sections 201, 202 and 208, the sections the FCC would likely not forbear.
"Immediate and blanket forbearance would mitigate many of the potential and significant harms that otherwise would result from reclassification," ACA said. "The case for blanket forbearance is particularly strong for ACA members because, as smaller ISPs, it is evident that they wholly lack the market power over edge providers or in their local markets that would justify any need for regulation," it added.
FCC chairman Tom Wheeler has signaled he plans a Feb. 26 vote on new open Internet rules Feb. 26, and that Title II is the likely route to restoring the old rules thrown out by a federal court for lack of sufficient legal justification.