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FCC Releases Title II Repeal NPRM - Broadcasting & Cable

FCC Releases Title II Repeal NPRM

Seeks a lot of input on host of issues
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As promised, FCC Chairman Ajit Pai released the text of his Notice of Proposed Rulemaking to roll back Title II reclassification of ISPs, including mobile broadband access providers and to relinquish any regulatory authority over interconnection.

And in a nod to smaller cable operators like those represented by the American Cable Association, it seeks comment on the impact of Title II on smaller operators, "many of whom lack the dedicated compliance staffs and financial resources of the nation’s largest provider."

As to having to build a record for the courts for changing the classification arrived at by Pai's predecessor, one of the key issues, the order explained it this way:

Related: FCC's Ajit Pai Launches Effort to Repeal Title II

"An agency also is free to change its approach to interpreting and implementing a statute so long as it acknowledges that it is doing so and justifies the new approach. Evaluating the change in regulatory approach in the Title II Order, the D.C. Circuit majority in USTelecom applied a 'highly deferential standard' to the agency’s predictive judgments regarding the investment effects of reclassification, and deferred to the Commission's 'evaluat[ion of] complex market conditions' underlying its rejection of providers' reliance interests in the prior classification.

"D.C. Circuit precedent also recognizes, however, that should the Commission's predictions 'prove erroneous, the Commission will need to reconsider' the associated regulatory actions 'in accordance with its continuing obligation to practice reasoned decision-making.'"

In addition, the item said, "we believe that the Commission's statutory interpretation in the Title II Order did not adequately reflect proper standards of statutory construction, and that classifying broadband Internet access service as an information service is the better reading of the statute, independent of the factual developments subsequent to the Title II Order."

Related: Senate Democrats Vow to Fight for Open Internet Order on All Fronts

The item asks a lot of questions about that and many other issues, in essence "crowdfunding" the issue of reclassification. Those include whether the FCC should "keep, modify, or eliminate" the "bright line" rules against blocking, throttling and paid prioritization, and enhanced transparency, while suggesting where the chairman might be by saying those bright-line rules were approved "despite virtually no quantifiable evidence of consumer harm."

We believe that the Commission’s predictions and expectations regarding broadband investment and the nature and effects of reclassification on the operation of the marketplace were mistaken and have not been borne out by subsequent events."

Pai signaled that the NPRM, which is being voted May 18, was only the beginning of a process, and to that point the FCC is allowing for more than three months for comments and reply comments. Comments are due July 17 and replies are due Aug. 16.

The item asserts that the reclassification of broadband internet as an information service is "firmly rooted" in precedent, specifically the FCC's decision to do so under FCC Chairman Michael Powell.

The highlights of the item, according to the FCC, are as follows:

1."Propose to reinstate the information service classification of broadband Internet access service and return to the light-touch regulatory framework first established on a bipartisan basis during the Clinton Administration.

2. "Propose to reinstate the determination that mobile broadband Internet access service is not a commercial mobile service and in conjunction revisit the elements of the Title II Order that modified or reinterpreted key terms in section 332 of the Communications Act and our implementing rules.

3. "Propose to return authority to the Federal Trade Commission to police the privacy practices of Internet service providers.

4. "Propose to eliminate the vague Internet conduct standard.

5. "Seek comment on whether to keep, modify, or eliminate the bright-line rules set forth in the Title II Order.

6. "Propose to re-evaluate the Commission’s enforcement regime to analyze whether ex ante [before the fact] regulatory intervention in the market is necessary.

7. "Propose to conduct a cost-benefit analysis as part of this proceeding."

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