August 30, 2017
More than 21.8 million comments later, it’s clear that the Federal Communications Commission’s latest efforts at net neutrality rules – the Restoring Internet Freedom Notice of Proposed Rulemaking – is the most commented upon proceeding in the agency’s history – even if the vast majority of those “comments” happened to be generated by robots and not real people.
Not surprisingly, commenters overwhelmingly support an open internet. So do we, and so do our members. Where we part company from those who advocate for the new Title II status quo is on what is the best approach for achieving effective, sustainable internet freedom and openness.
As USTelecom notes today in reply to other comments previously submitted to the agency, “any viable, pro-consumer solution for achieving a thriving, open internet cannot disregard the need for ongoing investment by our nation’s broadband providers to continually upgrade broadband networks to reach all Americans.”
USTelecom has previously noted that investment in broadband networks has dipped slightly since the agency adopted its Open Internet Order in 2015 and has advocated for Congress and the FCC to adopt policies that encourage more network investments. Consumers and businesses that rely on broadband need more innovation, not less, and meeting those growing needs will require a significant financial commitment by broadband providers.
As we note in our reply comments, “USTelecom and its members are not asking the Commission to take away the fundamental open internet protections that our nation’s internet users have always enjoyed.” We suggest, however, that those who support keeping the current rules in place “seem content to have the Commission ignore the harms suffered by the innovative broadband companies investing to build the networks necessary to provide these valuable services.”
“Reclassification of broadband internet access service (BIAS) under Title II was a means to an end, but it was not the only option,” USTelecom notes in the comments. “We seek a more modern, durable, and effective solution that takes into account and equitably balances the costs and benefits inherent to rules that encompass outdated legacy service restrictions and requirements. Title II does not achieve such a balance.”
Consumer Rely on Broadband Service Providers to Offer Information Service Capabilities
Broadband internet service was previously considered by the FCC to be an “information service” which by definition is the “offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications ….” It is indisputable that BIAS offer all of these capabilities and should therefore be properly classified as information service providers.
In 2015, the FCC argued that it was justified in using Title II authority over broadband internet access because “times and usage patterns have changed and it is clear that broadband providers are offering [ ] straightforward transmission capabilities that the Communications Act defines as a ‘telecommunications service.”
Yet the agency offered no evidence — anecdotal or empirical — to back up that conclusion.
To test that theory, USTelecom and NCTA – The Internet & Television Association recently commissioned a survey of 1,210 internet users about their expectations for broadband service. As we note in our comments, “it turns out that consumers expect their BIAS to offer far more than just a pathway to the internet… clearly, consumers expect to be offered, and in fact are offered, information services from their BIAS providers.”
The survey responses “make clear that consumers rely on the BIAS offered by their ISP not only for access to the internet, but also for capabilities that allow them to fully utilize all that the internet offers. The ability to shop online and process payment by credit card while sitting on your couch; to retrieve NASA’s live cast of a solar eclipse and watch it from your smartphone; to upload and make available to Grandma an instant video of your child taking his first steps – these capabilities are all enabled by the BIAS offered by ISPs.”
Broadband Competition Continues to Grow
As USTelecom recently noted in an analysis of FCC broadband availability data as of June 2016, competitive options for broadband service is available to more Americans – and at higher speeds – now than ever before.
As of mid-2016, 96 percent of Americans had at least one wired broadband service available to them – 98 percent, if fixed wireless is included in the analysis. As of mid-2016, wired broadband at 25 megabits per second download and 3 megabits per second upload was available to 89 percent of Americans. Almost half of American households had service available from two or more providers compared to just 23 percent four years ago, the data show.
Availability of competitive services from mobile broadband providers is even greater. Mobile broadband using 4G LTE technology was available to 99.5 percent of Americans by the end of 2015. About 98 percent of Americans have a choice of two or more 4G providers and 88 percent can choose from among four LTE providers.
As we note in our comments, “there was no paucity of competition, or systemic market failure, that justified reclassifying broadband providers as utilities in 2015; and there is no such justification for retaining that classification today.”
As comments (both spurious and real) on this important proceeding continue to flow into the FCC at a record pace, it’s important to remember that both sides of this debate agree on the need for an open internet. In the long term, the best approach is legislation that enshrines these consumer protections into law.
Short of that, however, we believe that the FCC should classify broadband internet access service as an information service, as the Supreme Court confirmed a decade ago it has the authority to do, and ensure open internet protections for consumers also allow for more network investments.