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Comments on Restoring Internet Freedom

07.17.2017

Broadband providers have been clear about their support for net neutrality – no blocking, no throttling or unfair traffic discrimination — and for the need for Congress to step in and step up to give the Federal Communications Commission clear, permanent and unambiguous authority to protect consumers and the innovation community.

As the FCC considers unwinding the 2015 Open Internet Order, which imposed regressive and ultimately anti-consumer and anti-innovation regulations on internet service providers, USTelecom and the broadband innovators we count among our members offered some perspective today on a better path forward.

USTelecom’s filing notes that “countries with heavy-handed, backwards looking regulatory schemes like Title II suffer from investment levels far below those in the U.S.” which is why the U.S. can “retain its leading role in shaping and benefiting from the internet and to maintain its global competitiveness” by adopting “a forward-looking regulatory structure for broadband internet access that will encourage the investment and innovation that our country needs.”

The FCC has Ample Authority to Reclassify Broadband Internet Access as an Information Service:

  • The law is “exceeding clear” that an agency has the power to change its mind. “There is abundant reason why the Commission may and, in fact, should revisit the reclassification decision reached in the 2015 Order.”
  • “As the Commission is well aware, the Supreme Court squarely determined in 2005 that the FCC may lawfully classify broadband internet access service as an ‘information service’ that is statutorily immune from Title II common-carrier regulation.”
  • “First, the key predicates of that order were incorrect even at that time; at the very least, contrary determinations were fully supported by that record.  For example, there was substantial evidence in the record that broadband providers did not hold leverage over edge providers (or end users) by virtue of their supposed “gatekeeper” positions.”
  • “There was also substantial evidence that consumers in large numbers were not impeded from switching providers by the cost of doing so, and in fact that they would switch if providers degraded or blocked certain content.”
  • “And, although the Commission specifically disclaimed any market power analysis, the 2015 Order nevertheless implicitly relied on an assumption that broadband providers had market power, despite significant evidence to the contrary.” 

Evidence Before the Commission Showed Significant Competition Among Broadband Providers

  • There was plenty of evidence in the docket that supported the “conclusion that broadband providers’ so-called ‘terminating access monopoly’ does not give ISPs leverage over edge providers that they could use to extract fees or otherwise engage in anticompetitive behavior. Accordingly, the Commission erred, and acted in a manner contrary to substantial record evidence, in concluding otherwise in 2015.”
  • “The Commission’s own data…revealed that a large majority of consumers considered it at least somewhat easy to switch broadband providers.” A 2010 FCC study “which the 2015 Order disregarded” found that “more than a third of respondents had switched providers at least once in the prior three years. This churn rate exceeded that for the cellphone market.”

Evidence in the Record Did Not Support a Change in Classification

  • The agency’s 2015 Open Internet Order relied on the belief that “the record in that proceeding showed a change in factual circumstances since the Commission determined that broadband Internet access was an information service in the 2002 Cable Modem Order.”
  • “The record before the agency previous (and today) also amply supports a conclusion contrary to the one the Commission reached in 2015. That fact makes it entirely reasonable for the Commission to conclude that the prior changes was unnecessary and to restore the factual and legal understanding under which broadband exploded and thrive for more than a decade.”

Conclusion

The commission’s fundamental public interest goal must be ensuring that all Americans — whether they live in urban or rural communities — can reap the benefits of connecting to a thriving and innovative internet. By returning to the long-standing and successful classification of broadband internet access service under Title I, the commission will take a major step towards supporting increased broadband deployment and competition, higher levels of broadband adoption and more innovation across the Internet. Removing the Title II millstone will greatly speed progress toward achieving the commission’s goal of bridging the digital divide, and securing our nation’s broadband future for generations of American consumers to come.