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Banks: Title II Not Right Approach for Broadband

03.16.2015

The notion that the Federal Communications Commission (FCC) needs to “shoehorn the Internet into Title II seems to us the really notable aspect of this order,“ said USTelecom’s Senior Vice President Jon Banks during a BroadbandUS TV live webscast on March 13. Appearing on a panel of industry representatives discussing the commission’s recent decision to reclassify broadband Internet access under Title II of the Communications Act, Banks said that investment has thrived under a Title I environment with the industry spending $60 to $70 billion dollars a year in infrastructure and fiber deployment projects that use union labor. “This has been world-leading investment: we invest twice what Europe invests per capita in broadband,” he said, adding that it would be hard to imagine how Title II could be any better for the edge application and content side of this business, which has changed how America uses technology and the Internet. 

The hour-long discussion addressed the pros and cons of the ruling and what impact Title II reclassification would have on broadband in America over the next year and beyond. Hank Hultquist, vice president-federal regulatory at AT&T, said the FCC could have protected the open Internet without turning to Title II rules, noting that the company has long supported the open Internet and its principles. He also observed that net neutrality rules have become confused with Title II:  “It’s not the rules of net neutrality that people are concerned about. It’s the regulation under Title II.” 

When asked about the legal implications, Banks said the notion of Title II as a legal panacea, which makes rules sturdy and concrete, is not “very sensible.” Such a move requires the “FCC to undo 15 or 20 or more years of precedent and overturn its own fact findings,” he said. Furthermore, he noted that those in the Internet ecosystem, whether broadband or edge providers, have been investing or running their business based on the Title I decisions, which has “given us the Internet we have today.”

The industry broadly supports core open Internet rules, Banks said. “No one is challenging whether there should be no blocking or no throttling.” The basis for a legal appeal will be focused on the application of Title II to the broadband industry, the implications and legal infirmities, such as undoing a decade-plus of calling broadband an Internet access and information service. “Congress passed these definitions,” he said. “The intent of Congress was to have a lightly regulated information sector and a more heavily regulated telecom sector … The FCC is not free to just change those definitions.”

Hultquist agreed that this longstanding debate would continue in the courts and Congress. “AT&T’s intent is to continue to try to find a way to protect an open Internet and to address concerns … but not apply a 1934’s law designed for the monopoly phone network to the Internet.”

Program panelists also included Craig Aaron, president of Free Press; Barbara Esbin, outside counsel with American Cable Association; Chris Lewis, vice president of government affairs at Public Knowledge; and Sarah Morris, senior policy counsel for New America Foundation’s Open Technology Initiative.

To view the webcast on-demand, click here.

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