7/17 FCC Comments on Preserving the 2015 Open Internet Order

The Open Technology Institute and the Wireless Future Program at New America submitted the following comments to the Federal Communications Commission calling on the agency to retain its 2015 Open Internet Order and its strong network neutrality rules as part of the FCC's proposal questioning the necessity of the rules. 

WiFu underscored the importance of a common regulatory framework for wireless and wireline broadband internet access and explained how the prevalence of mobile broadband use supports the Commission's finding that the two be regulated equally in the 2015 Order. WiFu also argued that mobile broadband internet access service is a "commercial" mobile service and therefore should be subject to common carrier regulation under Section 332 of the Communications Act. 

Executive Summary

The 2015 Open Internet Order protects consumers and the free market principles that have made the internet a robust engine of innovation and job creation. The majority of Americans only have one choice for a high-speed internet provider, leaving those broadband companies with immense power over the individuals who live in the areas they cover, even on top of the gatekeeper power they enjoy even in markets with more than one provider. Consumers have to pay these companies for their service or they are left without access to tools for education, employment opportunities, healthcare, commerce, government services, and news and information that the internet provides. The power broadband companies hold over consumers is not merely theoretical. History shows that without strong net neutrality rules, broadband companies will discriminate between certain bits of online traffic. Internet service providers have blocked or throttled against traffic for content including voice services and video streaming services for both affiliates of the broadband companies and for unrelated online services as well. Such discriminatory practices harm consumers who pay for access to the internet without manipulation from internet service providers and also distort the market by allowing  BIAS providers to dictate winners and losers in the massive online marketplace.

The Commission took action in 2015 to classify broadband internet service as a telecommunications service under Title II of the Communications Act, giving the agency sound legal grounds to protect consumers and regulate the broadband industry. The D.C. Circuit Court of Appeals upheld the Commission’s authority to reclassify broadband as a Title II service last year in a sweeping victory for internet freedom. The Commission’s move to classify broadband as a telecommunications service is therefore necessary to sustain basic   protections for both consumers and edge providers against discriminatory practices by the broadband ISPs that control the on-ramps to the internet. 

If the Commission moves to reverse the classification of broadband as a Title II service it would also undermine consumer privacy, damage efforts to bring broadband access to low-income Americans, and dampen investment in the internet economy. Without Title II jurisdiction over broadband providers, the Commission will have no authority to police the privacy practices of internet service providers, companies that gather large amounts of consumer private information. Similarly, the FCC’s ability to offer subsidies for standalone broadband service through its recently-modernized Lifeline program is contingent on Title II classification. The Commission’s move in 2016 to update the program to enable recipients of the subsidy to choose standalone broadband programs along with bundled voice and broadband and voice-only programs marked a significant move forward to bridging the digital divide. The Commission’s ability to offer standalone broadband service would be under substantial threat in the absence of Title II classification.

The Commission should also retain its authority to protect the public from interconnection abuse. Some of the most flagrant cases of consumer harm took place as a result of disputes among access internet service providers and the transit providers, content delivery networks, and edge services with which they interconnect. The Commission must not lose its clear authority to protect against these harms.

OTI also supports regulatory parity between fixed and mobile BIAS providers. There is a strong public interest in ensuring that all Americans have largely the same expectations, opportunities and access to content and services online no matter how they connect to the Internet.  The Commission must maintain a common regulatory framework for fixed and mobile BIAS providers. Divergent rules for fixed and mobile networks would run contrary to consumer experience and also distort markets for competing broadband internet access services.  The recent trends of mass adoption of mobile computing devices, the nationwide deployment of high-speed 4G/LTE networks and incoming 5G technologies, the massive offloading of mobile device data traffic over unlicensed Wi-Fi/wireline connections, the resulting rapid convergence of mobile and wireline networks, and new technologies that facilitate consumers switching back and forth seamlessly between truly mobile (carrier) and nomadic (wireline via Wi-Fi) networks, all support a common regulatory framework.

Any technical differences between BIAS networks—whether cable, satellite, mobile LTE or some other technology—are best accommodated by a Reasonable Network Management exception that is flexible but also strictly limited to purely technical (and not business) considerations. The same fundamental principles and obligations should apply to all broadband ISPs, even if the resulting rules are applied differently based on what is reasonable network management for a particular Internet access technology.

OTI also strongly believes the Commission has no basis to find that mobile broadband is less of a “commercial” mobile service (CMRS) now than it was in 2015. Today there is no networked service more open, interconnected and universally offered than mobile broadband Internet access service.  Mobile carriers integrate VoLTE and Wi-Fi calling, over the internet, to any IP or NANP user. And applications such as Google Voice give both IP- and NANP-addressed users the capability to communicate and interconnect.  Whether or not the classification of mobile BIAS as a “private” mobile service (PMRS) was plausible in 2007, in 2017 the NPRM’s proposal to redefine mobile BIAS as a "private" radio service (akin to a private taxi or push-to-talk workplace network) – and not as a “commercial” service (akin to the mobile calling and texting services) – only serves to reinforce the fact that the more consistent and natural interpretation of the Act is the one adopted by the FCC in 2015 and upheld by the D.C. Circuit Court in 2016.

Like the 2007 Wireless Declaratory Ruling, the current NPRM struggles to justify the classification of mobile BIAS as a “private” mobile radio service (PMRS). What is most obvious in 2017 is that mobile BIAS is not remotely comparable to PMRS.  Even if the Commission reverses its 2015 finding that mobile BIAS meets the literal definition of CMRS, the clear and extensive record of technological and marketplace changes since 2007 must lead the agency to conclude that mobile BIAS is the “functional equivalent” of CMRS.