|CFIF Submits Reply Comments to FCC: Warns Against Classifying Broadband as Title II Service|
|Monday, April 26 2010|
April 26, 2010
Chairman Julius Genachowski
Re: Preserving the Open Internet – Broadband Industry Practices GN Docket No. 09-191, WC Docket No. 07-52
Dear Chairman and Commissioners:
This month, the United States Court of Appeals for the District of Columbia Circuit held unanimously that the Federal Communications Commission (FCC) does not possess authority to regulate Internet service providers’ network management practices.
The Court’s rebuke not only vindicates applicable law, but also the principles of fairness, Internet growth and sound public policy.
After all, the Internet has remained open over the past two decades without any need for counterproductive “Net Neutrality” regulations, despite Net Neutrality advocates’ repetitious assurances of impending doom. During that period, the Internet has also transformed our economy and everyday lives like no other sector, precisely because the federal government has refrained from such harmful overregulation. To reverse course now and suddenly impose Net Neutrality rules during a period of economic turbulence would only serve to threaten the hundreds of billions of dollars of past and future private investment upon which Internet growth depends, thereby jeopardizing American innovation and jobs.
Now, in a reckless, legally dubious and desperate attempt to circumvent the Court’s reasoning, Net Neutrality proponents alternatively ask this Commission to classify Internet access as an antiquated “telecommunications service” under Title II of the Communications Act for the first time.
Alarmingly, some within the FCC echo this sentiment. The Commission’s April 6, 2010 Advisory following the Court’s decision stated, in ominous tone, “the Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end.” FCC Chairman Julius Genachowski repeated this unjustified intransigence, saying that the Court’s ruling “does not change our broadband policy goals, or the ultimate authority of the FCC to act to achieve those goals.” Chairman Genachowski added that the ruling “merely invalidated one technical, legal mechanism for broadband policy chosen by prior commissions.”
FCC Chief of Staff Edward Lazarus suggested similar obstinacy when he commented that “at the end of the day we’re going to move forward with our policy agenda.”
Any such attempt to shoehorn Internet service within Title II, however, would only trigger immediate and protracted legal challenge, create economically harmful regulatory limbo, prolong unnecessary acrimony and ultimately suffer similar judicial rejection.
As a matter of first concern, any attempt by the FCC to define Internet access as a “telecommunications service” under Title II, as opposed to an “information service” under Title I, would violate straightforward legal and regulatory precedent.
Title I of the Communications Act defines “information service” as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” In contrast, Title II of the Communications Act defines “telecommunications service” as “the offering of telecommunications for a fee directly to the public … regardless of the facilities used.” Title II further defines “telecommunications” as “the transmission … of information of the user’s choosing, without change in the form or content of the information as sent and received.”
Addressing that legal distinction at the onset of the Internet Era over one decade ago, the FCC determined that “Congress intended the categories of ‘telecommunications service’ and ‘information service’ to be mutually exclusive.” It further noted that, “information service providers are not subject to regulation as common carriers merely because they provide their services ‘via telecommunications.’”
In other words, Title I and Title II definitions are not ones that can be arbitrarily interchanged.
Applying those definitions, Internet service clearly qualifies as an “information service” under Title I, not a “telecommunications service” under Title II. This is because, as the Supreme Court wisely observed, Internet access entails information manipulation and utilization, rather than the static transmission subject to “telecommunications service” rules:
“Subscribers can reach third-party Web sites via the World Wide Web, and browse their contents, only because their service provider offers the capability for … acquiring, [storing] … retrieving [and] utilizing … information.”
Since the Supreme Court’s decision five years ago, Internet service and usage has only become more interactive and functionally flexible, not less. Accordingly, the logic designating Internet service as one that involves “generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications” has only strengthened. Therefore, any attempt by the FCC to arbitrarily classify Internet service as a more anachronistic “telecommunications service” would likely meet judicial rebuke.
In addition to contravening applicable legal definitions, any attempt by the FCC to classify Internet use as a “telecommunications service” under Title II would also collide with consistent, bipartisan agreement that Internet access is an “information service” under the Communications Act.
In 1998, the Kennard Commission cited bipartisan Senate correspondence holding that Internet use falls under Title I of the Act, not Title II:
“Nothing in the 1996 Act or its legislative history suggests that Congress intended to alter the current classification of Internet and other information services or to expand traditional telephone regulation to new and advanced services... Were the FCC to reverse its prior conclusions and suddenly subject some or all information service providers to telephone regulation, it seriously would chill the growth and development of advanced services to the detriment of our economic and educational well-being.
“Some have argued that Congress intended that the FCC’s implementing regulations be expanded to reclassify certain information service providers, specifically Internet Service Providers (ISPs), as telecommunications carriers. Rather than expand regulation to new service providers, a critical goal of the 1996 Act was to diminish regulatory burdens as competition grew. Significantly, this goal has been the springboard for sound telecommunications policy throughout the globe and underscores U.S. leadership in this area. The FCC should not act to alter this approach.”
The FCC itself defended that bipartisan determination up to the United States Supreme Court, so any sudden attempt to reverse course today would be all the more unjust.
The cumulative effect of this statutory and regulatory norm is that the Internet has flourished like few other innovations in human history. This could not have occurred without the hundreds of billions of private network investments, including $60 billion last year despite a difficult worldwide recession. Sudden regulatory classification of Internet access as a “telecommunications service” would only jeopardize that continued investment, and the future broadband growth that will spring from it.
Stated simply, the FCC possesses no factual or market basis for classifying Internet service as a Title II “telecommunications service.”
Please don’t hesitate to contact us with any questions, concerns or for additional comments. Thank you for your attention to this matter.
1. Comcast Corporation v. Federal Communications Commission, et al., No. 08-1291 (2010).
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