Phoenix Center: Title II Means Charging Edge Providers

Says FCC could not forbear termination charges to content providers for access to subs
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A new network neutrality regulatory analysis by the Phoenix Center says that if the FCC reclassified Internet access under Title II, ISPs would have to charge edge providers for delivering content to their subs.

According to the study, Tariffing Internet Termination: Pricing Implications of Classifying Broadband as a Title II Telecommunications Service, reclassification would turn edge providers into customers of broadband service providers, as opposed to a "carrier-to-carrier" relationship.

That, in turn, would require cable, phone and wireless broadband companies to create, and tariff, a termination service for Internet content.

But couldn't the FCC forbear those tariffs? Former FCC Chairman Julius Genachowski had suggested a Title II approach where the FCC could forbear the parts of Title II it did not want to apply?

Not according to the paper.

"[P]ursuant to the plain text of the Communications Act, recent case law, and the FCC's own precedent -- the Commission would be prohibited from using its authority under Section 10 of the Communications Act to forbear from such tariffing requirements because the agency has characterized Broadband Service Providers as 'terminating monopolists.'"

"The FCC has boxed itself in by describing Broadband Service Providers as a 'terminating monopoly'," says Phoenix Center President and study co-author Lawrence J. Spiwak. "Proponents of reclassification cannot have their cake and eat it too -- the presence of a 'terminating monopoly' prohibits the agency from using its forbearance authority under Section 10 to implement some sort of 'Title II Lite'."

The FCC is currently considering new Open Internet rules that would not be based on Title II, but it is under pressure to go that route from Open Internet activists.

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