Regulating broadband Internet access as a Title II common carrier service could threaten the continued expansion of broadband investment and improvement of service, USTelecom said in a letter sent to the Federal Communications Commission today. In its quest to craft strong net neutrality rules, the commission is set to vote May 16 on a proposed rulemaking that purportedly will explore the possibility of shifting to the Title II approach. This would be a major change, one that poses significant economic and legal concerns.
For more than a decade, broadband Internet access has been regulated as an information service, and during this period broadband providers have invested more than $670 billion. Title II proponents should think about the following questions, the letter said. Why would broadband network investment and innovation continue under a Title II regime? What incentives would broadband providers have to expand their infrastructure in the face of regulatory overhang and uncertainty? In addition, how would this approach help further broadband adoption?
Even if a Title II approach would survive legal challenges, it is unlikely to produce the benefits that net neutrality proponents are hoping to achieve. For example, under a Title II regime, discounted programs for disadvantaged, discounted broadband service offerings and other special deals typical of a competitive marketplace “would be jeopardized if subject to tariffing and cost support requirements,” the letter said.
Finally, Title II is not the absolute bar on “discrimination” that advocates claim. “Because 47 U.S.C. § 202 only prohibits “unjust and unreasonable” discrimination, it would not prevent a broadband provider from offering different serving arrangements to customers, provided these differences were reasonable and such arrangements were made available to other similarly situated customers.” This type of regulation also would not cover a carrier’s dealings with Internet edge providers, or a carrier’s business relationships with a third party purchasing non-telecommunications services, such as a paid prioritization arrangement with an edge provider.
The letter urges the commission to bring closure to the debate that has raged over net neutrality for nearly a decade by adopting, consistent with the guidance of the D.C. Circuit in Verizon v. FCC, reasonable rules to protect an open Internet while preserving incentives for continued broadband investment.
For more details, read the letter here.