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May 14

Considering Broadband as a Common Carrier in Four Simple Steps

plugNCTA today filed a letter with the FCC opposing a Title II reclassification of broadband. That is, we oppose the suggestion by some that broadband networks should be regulated essentially like a public utility, or common carrier. We’ve previously discussed the cons of Common Carrier classification as well posted a FAQ about this. But with growing conversation about Net Neutrality comes a need for a renewed understanding of the core issues surrounding broadband reclassification.

You can read the letter here, but an effort to encourage both transparency and a better understanding of common carrier regulation, we’re breaking down the letter and explaining the key reasons why choosing this path would be bad for the Internet and consumers.

It’s important to state upfront that NCTA wants to be a constructive partner in dialogue about new Open Internet rules. The substance of proposed rules can be fairly debated, but there is no sound reason to pursue reclassification under Title II.

Why?

First, common carrier regulation would threaten the virtuous cycle of deployment, innovation and adoption that the FCC has long sought to promote under section 706. Section 706 is a part of the1996 Telecom Act that legally tasks the FCC with the responsibility of making sure broadband is deployed to all Americans in a reasonable and timely fashion. Broadband is the fastest deploying technology in history. In only 17 years, cable’s been able to deliver broadband access to over 90 percent of American households. But by turning broadband into a common carrier, deployment and upgrades will almost certainly slow.

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Second, the classification of broadband Internet access “turns on the nature of the function that the end user is offered.”  Because the basic offerings and functionality of the broadband network are wholly unchanged and because cable ISPs have never in the past been regulated as common carriers, the FCC would be contradicting its former position if it were to reclassify broadband under Title II. If the FCC were to do so, it would “plunge the broadband industry into a lengthy period of uncertainty while a new round of appellate proceedings ran its course – a process that can be easily avoided by relying on the roadmap provided by the Verizon court.” In other words, doing so is legally questionable and, considering the recent Verizon decision offered a clear way around reclassification, totally unnecessary and wasteful.

Third, if the FCC were to classify broadband providers as common carriers, where would the projected $350 billion required to reach broadband deployment goals set forth in the National Broadband Plan come from? Right now, it comes from private investment. If broadband were reclassified, private money would almost surely dry up, as a wide array of financial analysts and industry observers have warned, and instead come from public funds. Indeed, as we see in our crumbling public infrastructure, the more the system is reliant on tax dollars and the will of Congress, the more things get neglected, fall into disrepair, and become woefully underfunded.

Fourth, common carrier reclassification wouldn’t affect the end goal of stricter Net Neutrality rules – especially those that prohibit “fast lanes”.  That’s because common carrier classification “does not impose a duty of ‘nondiscrimination’ but rather proscribes only ‘unjust’ or ‘unreasonable’ discrimination. That’s why it makes more sense to, as FCC Chairman Tom Wheeler is doing, base any open Internet rules on the guidance provided by the recent Verizon court case decision and not based on common carrier reclassification.

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