Our Honorary Chairman Rick Boucher talked with Jeff Hawn of RCR Wireless News for an article on Title II and net neutrality. In the article, Boucher argues that Congress needs to recognize the principles of net neutrality, but that Title II is simply an outdated fit when it comes to regulating broadband. An excerpt:
Boucher’s viewpoint is supported by a recent Georgetown study co-authored by Kevin Hassett of the American Enterprise Institute and Robert Shapiro of the Georgetown Center for Business Policy.
In the study, they write that Title II regulation is “likely to increase costs and regulatory hurdles for providers. Introducing substantial, new regulation of the businesses that provide much of the Internet’s infrastructure and content could not only raise the cost and price of most Internet communications, it also could reduce the efficiency of most network arrangements that depend on Internet platforms, devalue the investments made in those platforms or based on them, and force many organizations to reorient their enterprises in ways that would minimize the costs of the regulation rather than maximizing efficient operations.”
“The uncertainty of Title II will likely cool the willingness of ISPs to make investments in their infrastructure, the net effect of which is that we won’t get the broadband build-out we otherwise would,” Boucher added. “Additionally, companies will be more cautious with new innovations. Essentially Title II hits the slow-down button and it’s the American consumer who will suffer.”
Earlier today, IIA sent a letter to FCC Chairman Tom Wheeler expressing our support for the Commission’s upcoming rulemaking proceeding soon to be initiated to advance Lifeline reform. From that letter, signed by IIA Chairmen Rick Boucher, Bruce Mehlman, Larry Irving, and Jamal Simmons:
“In the U.S., consumers with economic means have nearly ubiquitous access to broadband, yet almost two-thirds of our nation’s low-income community continues to seek that similar opportunity. Without broadband availability, low-income families face an uphill battle in obtaining the American dream.
“In bringing Lifeline into the 21st century, broadband should be included as an integral, more affordable offering of the program, and consumers should be empowered by providing the subsidy directly to eligible people instead of companies. Moreover, to enhance administrative efficiency, we urge the FCC to shift program eligibility verification away from companies that are not accountable to the American people, and instead allow states to verify eligibility for Lifeline at the same time they determine consumer eligibility for other federal low-income programs. Such ‘coordinated enrollment’ would benefit consumers by streamlining the eligibility process and ultimately enable subsidy recipients to receive a ‘Lifeline Benefit Card’ where consumers could apply the funds to the provider of their choosing. These reforms would make program participation for all service providers more attractive, thereby broadening consumer choice and stimulating competition for the low-income consumer purchasing power.
“IIA applauds the Commission for quickly moving forward to initiate a new proceeding aimed to advance Lifeline reform this year. The time for reform is now, the need is great, and the goal is achievable.“
You can read the full letter here. Additionally, you can download our white paper on reforming the Lifeline program that we published last November.
Originally published by eWeek. Reposted here with permission.
IIA Proposes Net Neutrality Legislation to Solve FCC Title II Dilemma
by Wayne Rash
At first, Rick Boucher’s idea seemed too good to be true. The former Democratic Congressman from Virginia was proposing an idea so radical that I had to check my notes to make sure I hadn’t been daydreaming.
The concept was a bipartisan bill that would give both Democrats and Republicans something each party wants and little or nothing they don’t.
Boucher, honorary chairman of the Internet Innovation Alliance, offered draft legislation that would give the Democrats guaranteed, long term, net neutrality and Republicans something they really want, which is to return Internet access to being an information service rather than a telecommunications service, as it is under Title II. Perhaps more important, the bill that Boucher proposes doesn’t attempt to do anything else.
Boucher’s reasoning is based on a recent change of heart in Republican circles regarding net neutrality. Lately, it seems the party is OK with the concept as long as they eliminate the real problem they see with Title II, which is the reclassification. “What is so different today is that the Republicans have offered to the Democrats that range of network neutrality protection,” Boucher said.
“The Republicans have said that they’re willing to put strong protections for net neutrality in place and continue to have protection for information services,” Boucher explained. He said that for their part, the Democrats have told him that they’re willing to work with the Republicans as long as any legislation doesn’t become loaded down with provisions they can’t support.
“That way there’s only two moving parts,” Boucher said. The problem so far is that nobody on the Democratic side of the aisle has moved forward with discussions on how to draft legislation that would get bipartisan support. Now, with the move by the FCC to reclassify Internet access under Title II, Boucher thinks there may be an opening.
In a May 21 press conference held the day before our interview, Boucher and legal scholar Kathleen Sullivan, who is the former Dean of the Stanford Law School, pointed out how recent events could well result in all sides losing what they want. Sullivan pointed out that current legal challenges to the Title II reclassification could, and in fact are likely to, put the entire move by the FCC on hold.
But Boucher pointed out the looming danger that could come about in two years, a Republican win in the White House and a new, Republican-chaired FCC. He said that such an event could effectively undo everything the Democrats want, but also might undo everything the Republicans want, too.
Either way, it could tie up Internet regulation for years and, in the process, hurt innovation through years of uncertainty.
But there’s another potential stumbling block in this otherwise simple idea: that is, will the President sign such legislation? Boucher thinks he will, if only because the White House has been pushing the Title II reclassification is as a way to get net neutrality in place.
Unfortunately, as many people (including me) have mentioned, the FCC’s action doesn’t guarantee anything. A future FCC or a future White House can undo it in a heartbeat. This is why Boucher thinks bipartisan legislation is really the only good way to assure that net neutrality stands the test of time. Once it’s written into law, even the FCC can’t change it.
Of course the FCC doesn’t want to try, just as it has tried to rewrite the Communications Act to say what it wants. Sullivan pointed this out in her statement at the press conference as did Boucher, who is one of the authors of the current Communications Act.
“The Communications Act distinguishes between telecommunication services and information services,” Sullivan said in her presentation. “The Supreme Court has properly defined cable internet use as an information service. The FCC has reversed course and acted outside of the statute. Congress has not authorized this.”
By crafting and passing bipartisan legislation, both sides of the aisle in Congress can avoid outcomes they don’t want, Boucher said. “Democrats can protect net neutrality and Republicans can achieve a top policy priority which is to treat broadband as an information service.”
Boucher said he hopes that the House and Senate Commerce Committees can get the ball rolling. He pointed out that these committees tend to stay away from partisan politics and perhaps because of that continue to function in what is otherwise a politically gridlocked Congress.
Unfortunately, just because a bill makes a lot of sense, fixes a problem that many people believe badly needs fixing and is supported by both parties doesn’t mean it’ll ever see the light of day as a piece of proposed legislation.
The sad fact remains that despite general agreement on the need for a return to the way that the Internet was regulated before the Title II reclassification (meaning lightly if at all) and the agreement by nearly everyone from the Supreme Court on down that the Internet is an information service, getting legislation through Congress is problematic under even the best circumstances.
One can hope that Rick Boucher and the IIA can get this bill past dead center, but hope is about all that’s left.
Earlier today, our Honorary Chairman Rick Boucher and constitutional law expert Kathleen M. Sullivan participated in a teleconference to discuss the political and legal infirmities of the FCC’s recent net neutrality decision. The teleconference coincided with the release of IIA’s informational doc, “Permanently Securing Net Neutrality,” along with our timeline of light-touch regulation that has given consumers a vibrant Internet.
During the teleconference, Sullivan and Boucher discussed the political and legal fragilities of the FCC’s recent decision to impose public utility-style net neutrality rules on the broadband ecosystem, as well as the broader implications of Title II reclassification. Specifically:
How the FCC’s decision to reclassify broadband Internet access service as a “telecommunications service” subject to Title II common carrier regulation is contrary to nearly 50 years of FCC and Supreme Court precedent;
How the FCC failed to legally and factually justify its decision to abruptly reverse course; and
How the FCC now faces the real threat that its monopoly-era approach will be overturned either by a court or through the election of a Republican President that would alter the Commission’s leadership in 2017.
Our thanks to Kathleen M. Sullivan for participating in the teleconference. A recording of the discussion is embeded below:
This morning, our Honorary Chairman Rick Boucher had an op-ed published in The Hill encouraging Democrats to work across the aisle to legislatively ensure net neutrality is enshrined into law. An excerpt:
[W]hy, one may ask, would Democrats want to accept such an offer, since the FCC has now reclassified broadband as a telecommunications service, vesting the FCC with the power to apply a broad swath of common carrier rules to the Internet? Under that authority, the FCC can assure network neutrality and have residual power to regulate broadband providers in other ways that today are unforeseen. Why would Democrats want to give that up for a statute that only protects net neutrality?
The answer is both simple and compelling. The FCC’s reclassification decision rests on a bed of sand. It is highly impermanent and could be washed away with the next presidential election. Today’s seemingly firm network neutrality assurances are at serious risk of being lost in the future.
You can read Boucher’s full op-ed over at The Hill.
Our Honorary Chairman Rick Boucher has an op-ed in Thomas Jefferson Institute’s Jefferson Policy Journal arguing for bipartisanship, rather than heavy-handed regulation, to keep the Internet growing. An excerpt:
Not surprisingly, the policies that have fostered this growth and today’s open Internet have largely been bipartisan. Everyone favors good, clean, well-paying technology jobs and the companies that generate those jobs. This bipartisan consensus extended to the Federal Government as well. Back in the 1990s, during the Clinton Administration, the Federal Communications Commission (FCC) raced to do all it could to get the Internet to as many Americans as possible and to keep it free from overly burdensome public utility regulation that then applied to telephone companies. Two decades later we see the results of bipartisan efforts in the form of the free, open, privately-networked Internet that we enjoy today.
And equally unsurprisingly, anything that threatens this consensus and the Internet on which our economy increasingly depends should be of first importance to Virginia.
Unfortunately, the FCC’s new “net neutrality” rules attempt to promote an open Internet by imposing regulations designed for public utilities, such as gas and water companies. Imposing these so called “Title II” regulations on the Internet introduces unnecessary uncertainty into the broadband marketplace, and it could threaten the future investment that is essential to promoting an innovative, growing, and vibrant Internet-centric economy.
By treating the competitive multi-media Internet as a 20th Century “common carrier”, the FCC’s decision opens the door to Internet regulations modeled on the rules that were developed for the Ma Bell telephone monopoly and for other monopolies that offered a single service and were regulated in virtually all aspects of their businesses. Under the light touch regulation that has applied to the Internet since the Clinton era, investment across the information ecosystem has produced an Internet economy that is the envy of the world. A regulatory environment welcoming to investment was at the foundation of that success, and it is now threatened.
1. The courts
3. A new president
4. The budget
These are the five perils Julian Hattem of The Hill recently highlighted as potential pitfalls for the FCC’s new net neutrality rules. Hattern’s full piece is required reading for anyone concerned about the future of the Internet, since it casts a light on sheer amount of uncertainty the rules are already causing.
An excerpt about the threat of deadlock from the piece, featuring our own Honorary Chairman Rick Boucher:
For now, given the FCC’s current makeup of three Democrats and two Republicans, any company asking for exemptions to the net neutrality rules is likely to be rejected.
But if that should happen to change — for instance, if a Democratic president is unable to move his or her nominees through a GOP-controlled Senate after the current commissioners’ term expire — the agency could be stuck in a 2-2 deadlock, which would automatically grant an exemption, known as forbearance.
“It’s not too far out there,” former Rep. Rick Boucher (D-Va.), who helped write the 1996 law undergirding the FCC’s authority, recently told The Hill.
“In that circumstance, if a forbearance petition is filed and they don’t act on it, it could be deemed granted.”
In the wake of the FCC’s controversial decision to regulate broadband services under Title II, our Honorary Chairman Rick Boucher spoke with Jim Puzzanghera at the Los Angeles Times about the possibility of Congress formally enshrining net neutrality into law. An excerpt:
Rick Boucher knows as well as anybody that net neutrality is the type of complex technology topic that Congress finds difficult to handle even when Democrats and Republicans are getting along.
But the former 14-term House member, a longtime player on Internet policy who now heads a telecommunications industry trade group, is optimistic that the controversial Internet issue could be a surprising source of compromise in a time of partisan gridlock.
“Each side can give the other the thing it wants the most,” Boucher, a well-respected Democrat who is honorary chairman of the Internet Innovation Alliance. “This is an optimal moment to legislate.”
Check out Puzzanghera’s full piece over at the Los Angeles Times.
Earlier today, our Honorary Chairman Rick Boucher testified before the Subcommittee on Communications and Technology on the effects the FCC’s Net Neutrality proposal will have on the future of the Internet. In his testimony, Boucher — who served on the House Energy and Commerce and Judiciary Committees, along with the subcommittees on Communications, Technology and the Internet during his time in Congress — urged Congress to take up the issue via legislation. An excerpt:
If a Republican wins the 2016 presidential election, the new Administration would be unlikely to support a writ of certiorari to the U.S. Supreme Court if the rules are struck down by a U.S. Court of Appeals. It would be unlikely that in such an event the FCC in a Republican administration would initiate a new network neutrality proceeding. In fact it is probable that an FCC with a Republican majority would, as an early order of business, undertake a reversal of the reclassification order that will be approved tomorrow.
For these reasons, the network neutrality assurances of tomorrow’s reclassification order rest on a tenuous foundation. They are at risk of being lost. Legislation is, therefore, a superior solution. It would be virtually impenetrable from a judicial challenge, and would resolve this debate with a statutory permanence and degree of certainty not available through the regulatory process.
Read Rick Boucher’s full testimony.
Last week, the Wall Street Journal published an op-ed from our own Rick Boucher and the author of our latest report, Fred Campbell, on the perils of following Europe’s lead to regulate the Internet. An excerpt:
Net-neutrality proponents assume that the impact of common-carrier regulations will be minimal and that the U.S. will maintain its technology lead forever, but the European regulatory example suggests that such an outcome is far from certain. It is more likely that imposing regulations crafted for last century’s monopoly telephone service will have a crippling and chilling effect on broadband investment. Investment drives innovation: As the Internet Innovation Alliance study demonstrates, Europe has fallen badly behind the U.S.
You can read the full op-ed over at the Wall Street Journal (subscription required).
Says Congress should resolve the Open Internet debate with targeted legislation aimed at reinstating the 2010 Open Internet Rules and not imposing public utility regulation on broadband
WASHINGTON, D.C. – February 4, 2015 – In response to press reports highlighting the Federal Communication Commission’s (FCC) policy direction on new Open Internet rules, IIA issued the following statements from Rick Boucher, a former Democratic congressman who chaired the Energy and Commerce Subcommittee on Communications and the Internet and serves as honorary chairman of the Internet Innovation Alliance (IIA), and former Assistant Secretary of Commerce under Clinton – now IIA Founding Co-Chairman – Larry Irving:
From Congressman Boucher:
“I urge Chairman Wheeler to reconsider his plan to treat broadband services under common carrier rules. Subjecting broadband to public utility regulation under Title II is unnecessary for assuring continued Internet openness and would carry deeply harmful consequences. Internet infrastructure investment would be stifled at a time when we have a national goal of extending high-speed Internet service to 98 percent of Americans.
“A better way to preserve the open Internet, protect consumers and promote innovation is to encourage the private investment necessary to support the deployment of high-speed, next-generation broadband nationwide. I’m confident in Congress’ ability to secure a win for our nation with a bi-partisan legislative solution that empowers the FCC to re-promulgate the 2010 Open Internet Rule but precludes the imposition of onerous Title II regulations. This outcome would protect the Open Internet by remedying the D.C. Circuit’s objection that the Commission lacks the statutory authority to act and maintain the existing light-touch regulatory environment that is welcoming to high-speed broadband investment.”
From Larry Irving:
“Imposing Title II regulation on broadband Internet primarily will benefit lawyers. Endless litigation will create additional uncertainty in the market and impact Internet innovation and investment as companies and investors try to figure out what provisions do or do not apply in a new Title II world.
“Democrats primarily have driven the net neutrality debate, but today Republicans in Congress stand ready to work on a bipartisan basis on legislation aimed to ‘keep the Internet open.’ If an open Internet is the goal, why is the only acceptable mechanism for achieving that goal a centuries-old regulatory framework? Preserving the open Internet through bi-partisan legislation, achieving and declaring victory on an important issue, steering clear of interminable and disruptive litigation, and reducing consumer costs by veering away from antiquated Title II regulation would seem to be the better alternative.
“For more than two decades, from the earliest days of the Internet, I along with most Democrats involved in development of our nation’s Internet policy, have advocated a light regulatory touch for the Internet. I still believe that to be preferable to utility-style regulation for the fast-moving and constantly evolving Internet. But, as important, to craft the right solution for America, we need to end the partisan politics around the Open Internet issue and work towards and embrace bi-partisan solutions.”
Our Honorary Chairman Rick Boucher has taken to the pages of Roll Call to argue that Congress should act now to ensure net neutrality. An excerpt:
The coming month, before the FCC acts presents a timely opportunity for Congress to step in and resolve the debate on terms that would seemingly be agreeable to Democrats and Republicans, broadband providers and consumers seeking continued access to robust high-speed Internet services. The FCC promulgated its open Internet rule in 2010 against a backdrop of consensus that had been reached through lengthy discussions among the stakeholders. While not all of the parties were in agreement, a critical mass of consumer groups, broadband providers and policymakers created the consensus that resulted in the FCC’s open Internet framework. It’s notable that among broadband providers, AT&T publicly expressed support for the rule, and it was ultimately approved with the FCC’s Democratic members voting affirmatively. Even more noteworthy is that in the four years since the open Internet rule was adopted, broadband providers have integrated its requirements into daily operations, and high-speed Internet access service has expanded absent consumer complaints of violations.
Check out Boucher’s full op-ed over at Roll Call.
Our Honorary Chairman Rick Boucher recently penned an op-ed for Bloomberg on the critical need to reform Lifeline. An excerpt:
Each day brings new examples of how broadband-delivered Internet services are fundamentally changing the nature of communications. In the 1980’s, the wired telephone was the predominant communications platform for almost everyone. Today, just five percent of Americans rely exclusively on “plain old telephone service.” The rest use a variety of communications devices, a growing number of which are broadband-enabled.
So the question is not just whether to expand Lifeline to include broadband, an idea endorsed by two FCC commissioners and the chairman at the agency’s December open meeting; the question is how to incorporate broadband without exploding the cost of the program.
You can check out Boucher’s full op-ed over at Bloomberg.
Our Honorary Chairman Rick Boucher has an op-ed in The Hill on how outdated regulations are limiting competition when it comes to broadband. An excerpt:
Consumers are fleeing the old network in droves. Only 5 percent use it exclusively, and another 28 percent use it in combination with a wireless service. Two-thirds of communications users have left the old network entirely. Every dollar telcos are required to spend on a network consumers are abandoning is a dollar not spent on deploying the modern networks that consumers prefer. Viewed in this light, the USTA plea for relief is entirely understandable — and it’s entirely justified.
FCC Chairman Tom Wheeler has said he wants more “meaningful competition” in high-speed broadband, particularly between telecom companies and cable providers. As Wheeler put it, these new broadband entrants are “well-positioned to give cable a run for its money, offering consumers greater choice.” This is exactly how it should work.
Check out Boucher’s full op-ed over at The Hill.
Over at Bloomberg Law, our Co-Chairman Larry Irving and Honorary Chairman Rick Boucher have penned an op-ed on why the FCC should focus on Section 706 rather than Title II when it comes to net neutrality. An excerpt:
Everyone agrees that broadband providers should not become content gatekeepers. That’s been clear since 2010 when the FCC initiated its inquiry into how best to maintain an open Internet. Moreover, the facts make clear that the underlying success of the Internet in the two decades since its commercialization has been based on light-touch federal regulation and private sector, commercially-negotiated arrangements among service providers that have led to very few real complaints about supposed “gatekeepers.”
Under section 706, the FCC could prohibit so-called “paid prioritization” anytime such a practice has the effect of slowing down content or degrading the quality of service that any broadband customer receives, and which represent the alleged potential harms that lie at the core of the concerns expressed by activists urging Title II reclassification.
This fall’s intense debate is not about whether to preserve an open Internet. It’s about which of two available approaches the FCC could use is best.
Check out the full op-ed over at Bloomberg Law.
There are several commonly disseminated myths aimed at perpetuating confusion and misinformation during the pendency of the Federal Communications Commission’s (FCC) Open Internet proceeding. Facts, however, cut through the clutter and allow for a discussion rooted in reality rather than rhetoric.
Title II reclassification of broadband is not necessary to preserve an Open Internet.
Here’s why the FCC can and should move forward with Open Internet rules designed under its Section 706 authority rather than reclassifying broadband services under Title II of the Communications Act:
TITLE II AND SECTION 706: Myths vs. Facts
Myth: Title II regulations helped bring about the Internet boom of the early 2000s.
Fact: Although an initial investment spike occurred immediately after the passage of the 1996 Act, that investment was short-lived. That initial spate of investment was primarily directed at technologies and business models that were quickly outstripped by more modern technologies. In fact, the majority of the investment in our country’s broadband infrastructure occurred after the FCC’s 2003-05 decisions to decrease regulations on the broadband industry. This surge in investment laid the groundwork for high-speed Internet to become a leading driver of our nation’s economic growth and to spur the incredible innovation consumers enjoy today.
Myth: Title II-like regulations helped Europe leapfrog the U.S. on broadband deployment.
Fact: Europe gave up its leadership position when it began its path toward heavy-handed regulation that deterred broadband investment and deployment.
According to an independent study, today nearly 82% of U.S. consumers enjoy access to next-generation, high-speed broadband networks (over 25Mbps) while only 54% of Europeans have comparable access. In rural areas, the U.S. again leads in access, 48% to 12%. Next-generation wireless broadband (LTE) is available to 86% of Americans but only 27% of Europeans.
European broadband policies are built on extensive, public utility-style regulation that has depressed broadband investment. In contrast, the U.S. light-touch regulation model has enabled U.S. broadband network operators to invest more than double per household than Europe does: $562 versus $244 in Europe.
Myth: Applying Title II regulations to broadband networks and providers will prevent companies from creating Internet “fast lanes”.
Fact: The FCC has stated that no ISP has ever engaged in paid prioritization schemes. No evidence exists that ISPs have ever or are likely to create fast lanes and slow lanes.
Reclassifying broadband under Title II would not prevent such. In fact, under Title II, public utilities have always been allowed to offer prioritized services. Telephone companies routinely offer installation and repair priority along with service level guarantees to those willing to pay extra money.
According to FCC Chairman Wheeler, the 2010 net neutrality rules were never intended to cover these privately-negotiated business deals, only the last mile of the Internet.
Myth: Wireless networks and wireline networks are virtually interchangeable these days and should have the same net neutrality rules.
Fact: In the 2010 rules, to which all carriers committed, the FCC stated that special characteristics of mobile broadband infrastructure make it essential to give mobile providers additional flexibility in how they manage the traffic on their networks. Due to resource constraints, such as the limited amount of spectrum available for consumer use, mobile networks operate differently than wireline networks. A stringent regulatory environment established under Title II, and intended primarily for a monopoly-era copper wireline world, would be onerous.
The FCC still imposed two conditions on wireless networks in 2010. First, wireless networks cannot block access to legal websites, with exclusions for reasonable network management. Second, wireless network providers were required to disclose their network management practices, performance and terms and conditions of their broadband services.
The current approach acknowledges how wireless networks are different from fixed networks but still protects consumers and enables investment and innovation in the intensely competitive wireless marketplace.
Myth: ISPs harm the open Internet through discriminatory practices. The only way to keep the Internet open is to reclassify Internet services as telecommunications services.
Fact: The Internet, without Title II regulations, is and has been open since its first public use. It continues to thrive in the current regulatory environment. In contrast, Title II regulation would stifle investment and hinder innovation. Innovative new services and business models would have to be vetted and approved by the FCC, slowing the Internet’s vitality and growth.
Ensuring a fair and open Internet through authority granted by Section 706 is a better path. Section 706 permits the FCC to prevent paid prioritization while encouraging innovation and investment from ISPs and other Internet companies.
Myth: Title II can be easily adapted to today’s modern communications systems.
Fact: The past 20 years have seen stunning technological advancements in the communication industry. Americans can now access a wealth of information in myriad new ways. The transformation of the communications industry has caused companies to no longer fit neatly into legal categories envisioned by the 1996 Telecommunications Act or, even more obviously, the Title II rules written in 1934. That’s why companies not normally thought of as “broadband providers” could find themselves categorized and regulated as telecommunications carriers because their service overlaps with the services provided by ISPs if Title II regulations are placed on broadband services. For example, when Google connects you to a business you searched, should it be considered subject to Title II? Or if a provider of email enables a video messaging session, would it open itself up to Title II regulation on the grounds that it is a facilities-based provider or reseller? Could be. And that’s the fear.
Myth: The FCC could apply Title II to broadband, but exercise its forbearance authority when dealing with innovative companies and services.
Fact: Reclassifying broadband services as telecommunication services under Title II would burden 1/6 of the nation’s economy with stringent, investment-inhibiting government regulation. The government would have expansive power over all broadband services, likely including all edge providers and consumer broadband applications and services. The process necessary to analyze and identify which areas of the nation’s broadband economy the FCC would spare from heavy government intrusion would be both lengthy and costly. Additional time and resources would probably be squandered in the litigation that will inevitably follow.
Myth: Unlike Title II, the FCC does not have the power to promote an open Internet under the limited provisions of Section 706.
Fact: Relying on Section 706 to protect consumers and ensure an Open Internet is a superior choice to the overbroad, utility-style Title II regulatory framework of the 1934 Communications Act.
The FCC’s Section 706-like approach in 2010, created rules that found the right balance between regulations necessary to advance consumer protection goals and the need to attract new investment to broadband to ensure future deployments of modern high-speed networks. Under those rules, access to capital grew and we saw massive growth in the digital app economy, video over broadband, VoIP, the advent of tablet computing, and the rise of mobile e-commerce.
Moreover, a Federal Appeals court has given Section 706 its seal of approval and the FCC can assert this authority with confidence. In fact, the courts have said that the FCC is empowered to create rules “governing broadband providers’ treatment of Internet traffic…that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet.”
The facts are clear: Reclassification of broadband under Title II is unnecessary to ensure continued Internet openness and would backfire with harmful consequences for innovation and investment. The FCC should instead make use of its powers under Section 706 to protect consumers, promote innovation and encourage nationwide deployment of next-generation broadband.