Five associations representing broadband service providers in two separate filings on Friday asked the FCC to stay its decision to reclassify broadband as a Title II telecommunications service. One filing came from the American Cable Association and the National Cable & Telecommunications Association. The other came from CTIA – The Wireless Association, USTelecom, and the Wireless Internet Service Providers Association, with AT&T and CenturyLink also joining in on that filing.
According to a press release from the ACA and NCTA, filing with the FCC is a procedure required prior to filing with an appeals court. Neither the ACA/NCTA filing nor the one from the other stakeholders is asking for a stay of Open Internet rules, which were part of the same FCC action that reclassified broadband.
Rationale for a Stay of Title II Decision
“The FCC’s decision to shift from a national policy of light Internet regulation established by Congress to heavier regulation risks undercutting the dynamic innovation, entrepreneurial activity and consumer freedom that has been the hallmark of the Internet’s success,” said NCTA President and CEO Michael Powell in the ACA/NCTA press release.
The FCC made the decision to reclassify broadband, in large part, to establish its authority to impose Open Internet rules. When the commission made that move, it opted to forbear from imposing certain obligations traditionally associated with Title II such as rate regulation and unbundling requirements. But the petitioners argue that reclassifying broadband will hurt their business in various ways.
The cable associations argued that the order subjects Internet providers to “vague and onerous standards,” creating significant uncertainty about the introduction of new services and exposing providers to litigation. They also referenced new obligations regarding customer information that will require purchasing new equipment and hiring and training new staff – an apparent reference to the need to comply with CPNI regulations. Additionally the cable organizations said reclassification could lead to higher pole attachment rates and could require ISPs and their customers to pay state and local taxes and fees.
The telcos, telco organizations and WISPA also noted potential new legal costs and a potential decline in investment. Additionally they said reclassification could impede “innovative marketing plans that are popular with consumers” – an apparent reference to wireless plans that allow consumers to use certain applications without having those applications count toward monthly data usage.
USTelecom and those filing with the organization also expressed concern about FCC control over Internet peering agreements. A press release from the petitioners notes that “some companies have already threatened to initiate FCC enforcement actions to achieve peering arrangements favorable to them, no matter what the balance of traffic is between providers.”
In the press release from USTelecom and co-filers, USTelecom President Walter McCormick argued that there was little downside to imposing a stay on the FCC’s Title II decision on broadband. “The commission’s departure from established law threatens consumers and members of our industry with immediate, irreparable harm,” said McCormick. “Staying the order for a short period under the terms outlined in the petition will pose no risk to the public, and would promote stability and predictability in the broadband marketplace.”
Also pending are suits from several broadband provider organizations and some individual providers seeking an overturn of the FCC’s Title II decision. To date one of the few service provider associations that hasn’t challenged the FCC’s decision is NTCA – The Rural Broadband Association. The organization has expressed support for certain aspects of the decision, apparently in the hope that it will make it easier for the FCC to broaden the contribution base for the Connect America Fund – a move NTCA members say would make the program more sustainable.