NCTA To FCC: Above All, Do No Harm


The National Cable & Telecommunications Association says the FCC should adopt a sort of Hippocratic oath for broadband--above all, do no arm--and that applying common carrier regs to Internet access would definitely violate it.

In reply comments filed Thursday with the FCC, NCTA says that if there is one conclusion that should be drawn from initial comments on the FCC's proposed "third way" title II reclassification of Internet access service, it is that it would be a "very bad idea" to impose the full force of those regs.

But even the FCC's proposal to apply on some of that force, while forbearing most of the Title II regs, is not the way to go, said NCTA in reply comments to the FCC Thursday, saying that sticking with Title I ancillary authority or targeted legislation are both preferable.

A federal appeals court in the BitTorrent decision told the FCC that it had failed to tie that ancillary authority to statute, but did not say it could not find a way to do so, a point NCTA makes in its comments. 

It says that the FCC has sufficient authority under Title I to implement "important" provisions of the national broadband plan including universal service reforms.

And while the FCC has authority to implement the plan's proposals on pole-attachment rates--the commission wants to lower them as spur to broadband adoption--NCTA argues that authority would be undermined by reclassifying broadband as a telecommunications service.

NCTA did say that it did not think that ancillary authority would be enough to underpin the FCC proposal--in its network neutrality rulemaking--to adopt a prohibition on "unreasonable" discrimination, which the cable trade group calls an "overbroad and idiosyncratic prohibition."

Cable operators argue that the FCC would have an uphill, and perhaps impossible, legal struggle to "fit broadband" into a telecommunications service definition. They say the Internet has flourished thanks to the hundreds of billions of dollars in investment by cable operators and others, and thanks to Congress' directive that it be "unfettered by federal or state regulation."

By contrast, NCTA said, "if the Commission adopts its proposed interpretation, it will open the floodgates to expansive and comprehensive regulation of the Internet."

The FCC should be in no rush in any event, said the group. "There are no storm clouds on the horizon, much less overhead." With only a couple of examples of "supposedly improper conduct"--the most obvious and germane being Comcast's blocking of BitTorrent peer-to-peer file uploads--NCTA says there is no obvious need for any rules to replace the FCC's "vigilant restraint" policy, and plenty of time for Congress, rather than the FCC, to decide whether the FCC should have more authority, or less, to adopt Internet regulations.

"The Commission's guiding principle for preserving, promoting and maximizing the value of the Internet for
consumers should be "above all, do no harm," concluded NCTA. "Nothing would be more at odds with that principle than imposing Title II regulation - in whole or in part - on broadband Internet service."