ISPs Try to Fend Off Common Carriage

PROVIDERS PUSH NEW REASONS WHY TITLE II REGULATION WON’T WORK
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WASHINGTON — Cable providers and telephone companies and are raising new arguments against reclassifying Internet access as a Title II telecommunications service as networkneutrality backers try to push the government toward that option.

In 2010, the threat of classifying Internet access under Title II common-carrier regulations drove Internetservice providers into a forced marriage with networkneutrality rules they had opposed as unwarranted and potentially damaging to their business model.

Fast-forward to this year, and the threat has returned. Cable operators and other ISPs are nearly falling all over themselves promising to adhere to existing net neutrality rules — which don’t actually exist at the moment, save for a requirement that they be transparent about their network-management practices — while finding new arguments for why Title II is a nuclear nonstarter.

The drumbeat has begun in earnest for using Title II authority to ensure that the Federal Communications Commission’s latest attempt to make rules stick does not wind up back in court.

The U.S. Court of Appeals for the District of Columbia Circuit signaled in January that the FCC could use its existing authority (under Section 706 of the Telecommunications Act) to reinstate the no-blocking and no unreasonable discrimination rules.

The D.C. Circuit also said the FCC could use Title II if it wanted to impose commoncarrier regulations on Internet access.

Washington, D.C.-based advocacy group Public Knowledge was at the table last time when the FCC came up with Section 706-based compromise rules. Now it is pushing hard for Title II, pointing out that Sen. Ed Markey (D-Mass.) has been trying to drum support in that body for reclassification.

One argument ISPs have made is that Title II does not prevent the paid prioritization of Internet traffic, which has become the hot-button issue.

“Title II does not require that all customers be treated the same, as reclassification proponents seem to believe,” AT&T told the FCC. “Rather, by its express terms, Title II prohibits only ‘unjust and unreasonable’ discrimination, and it is well established that Title II carriers may offer different pricing, different service quality, and different service quality guarantees.”

Another argument being put forth by cable companies is that they don’t need the new rules to be bound by the old ones because their network-management statements, required by the transparency rule, are still in place. In those statements, ISPs have pledged not to block or unreasonably discriminate against Internet traffic. If those pledges are violated, the Federal Trade Commission can step in.

The FTC is primarily an enforcement agency, rather than a rule-making body, but it can enforce violations of pledges like those embodied in network-management statements — unless the FCC reclassifies Internet access under Title II.

Under Title II, consumers lose one of the most important cops on the beat, National Cable & Telecommunications Association president Michael Powell told C-SPAN in an interview. “If you are a Title II telecom-service provider, the Federal Trade Commission loses its jurisdiction,” he said.

Some people may have forgotten that the FTC’s protections against false advertising would be lost, as would the agency’s role in protecting privacy, Powell said.

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