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The Federal Communications Commission (FCC) needs to make certain that it has solid legal authority to implement a wide-ranging National Broadband Plan that would serve the public interest, Public Knowledge told the FCC today. The comments are here.
In reply comments considering the FCC’s National Broadband Plan, Public Knowledge said the best course of action would be to change the regulatory classification of broadband services to make certain of the Commission’s authority. Doing so would remove “the shadow of uncertainty” that has hampered the Commission since 2002, when Internet access services offered by phone companies were removed from Title II jurisdiction under the Communications Act, which governs “common carrier” services like telephone, and placed in a more nebulous Title I. Public Knowledge said that such a reclassification wouldn’t burden the telecommunications industry.
“Without clear legal authority, the Commission might find itself unable to respond to the needs of public safety, unable to protect privacy, and incapable of collecting needed information to ensure that the Internet remains affordable, open and competitive,” said Harold Feld, legal director for Public Knowledge. He added: “The National Broadband Plan will face difficult challenges and stiff resistance from those who benefit from the status quo. A plan built on a shaky foundation cannot carry us into the 21st Century.”
Many telecommunications services are offered today under the “common carrier” category, but the FCC has not heavily regulated them, Public Knowledge said. The same could hold for broadband Internet access, which today is largely the same as other services regulated as “common carriers.” Internet Service Providers “today compete on their ability to move packets to and from the Internet – which is the essence of the provision of basic telecommunications services,” Public Knowledge said. The Commission can change broadband back to a Title II service “simply because it finds that Title II classification would better serve the goals of the National Broadband Plan than the current Title I classification. Title II classification would provide greater certainty and authority for the Commission to implement the goals of the plan,” Public Knowledge said.
The current regulatory regime has failed, PK said, telling the FCC that the predictions of competition made by the FCC in 2002 have not been borne out, and that consumers have the same choices then as they have now. However, the reclassification then caused numerous problems: “In short, rather than create a more flexible regime, Title I classification has merely heightened uncertainty and increased the burden on the Commission when it finds that it must take action to fulfill its broad statutory duties to promote broadband deployment and protect consumers in the digital age.” A recent oral argument before the U.S. Court of Appeals for the District of Columbia circuit was “a rude reminder of the uncertainty over the nature and extent of Commission authority,” PK said.