Posted by: Bob Quinn on July 15, 2010 at 4:58 pm
Since the FCC released its Notice of Inquiry (NOI) on the regulatory classification of broadband Internet access services, we’ve spent some time explaining why Title II is a bad idea for achieving the goals of the National Broadband Plan – the investment, innovation, and market certainty needed for job creation.
Today, our filing at the FCC packages up all that is wrong with the Commission’s approach, including how the plan would scuttle the Administration’s ambitious broadband deployment and adoption agenda, and chill multi-billion dollar private sector investment and job creation. We also debunk the notion that this is the only way to accomplish the FCC’s National Broadband Plan core objectives, and we highlight the plethora of legal problems and uncertainties that would sweep through the Internet ecosystem.
Is it all to achieve the political aims of some extreme pseudo “consumer” groups whose rhetoric gets more over-the-top every day if the FCC doesn’t do exactly what they want? Have you seen the Wanted Posters of FCC Chairman Genachowski?
The FCC’s Third Way, Title II proposal is truly like hunting flies in your home with a sledge-hammer. When it is all said and done, some of the walls, ceilings and floors will be gone but the flies will still be there. Let’s just take a few examples to show you what we mean.
First, the Commission says that its proposal won’t regulate the Internet or affect critical Internet component services like backbone services or those delivered by content delivery networks (CDN). That is just plain wrong and fundamentally misconceives how the Internet actually works. The service the FCC wants to create and place under Title II common carriage regulation is Internet Connectivity Service. Simply put, if you’re an AT&T customer, you can’t send an e-mail to a Comcast or Verizon or RCN customer without going through someone’s backbone. And if you’re looking to get content from a company that does business with a CDN like Akamai, that content will come into the Internet from a transmission service provided by the CDN that sure looks like Internet Connectivity Service. The unintended consequences falling upon a range of Internet-based services are far-reaching and serious.
Second, the will of the American people, as expressed through their elected officials, ranges from caution to alarm. It is no small matter when a bi-partisan majority of Congress, expresses doubts, in some form or fashion, about upending decades of bi-partisan consensus against common carrier regulation of any aspect of the Internet. And there is good reason for the doubts of those policymakers. If an agency has to “create” a service that does not exist today and force companies to sell that service just so it can apply Title II and regulate that service all to get around a court decision, it seems to cry out that this is not an area where the agency has any clear jurisdiction. Oh, and while we’re on this topic, just to be clear, when it comes to wireless broadband, the Commission is barred by law from classifying it as a Title II telecom service (see page 112 of our comments).
Third, for the past 12 years, a series of Commission and court decisions have confirmed that Internet access service is a Title I information service with no Title II telecom service component. The Commission cannot point to anything factually that has changed that would warrant reaching a different conclusion.
Fourth, even if the Commission (in an alternate universe) could lawfully justify classifying broadband Internet access as a Title II service, it should not go down that path simply because it is bad policy. For the first time in nearly a generation, a broad consensus is emerging among many stakeholders in support of targeted Congressional action. Against this backdrop, the Commission does not need to throw American Internet policy into turmoil and uncertainty.
Finally, as we have pointed out previously, applying Title II to the entirety of the Internet infrastructure in the manner proposed under the Third Way would not have prevented the conduct at the heart of the Comcast-BitTorrent dispute nor the Madison River VoIP blocking Consent Decree – the only two examples ever cited in this debate by proponents of Internet regulation.
So, for those keeping score at home, the Third Way would be wrong technically, politically, and legally. It would be bad policy from an investment and economic perspective and it wouldn’t fix the problem the FCC was trying to address in the first place. All you have left at the end of the day is your sledgehammer, a lot of holes in your broadband home and those pesky flies still around to keep you company.
Hopefully common sense will prevail here, and we can move on to real issues, like removing barriers to investment in broadband infrastructure, creating some jobs and getting this economy moving again.
