8/30 FCC Reply Comments on Preserving the 2015 Open Internet Order

New America's Open Technology Institute filed reply comments with the Federal Communications Commission calling on the agency to retain the 2015 Open Internet Order and the key principles that make up the network neutrality rules. The reply comments respond to a bevy of arguments put into the record throughout the FCC's proceeding, including defending the FCC's decision in 2015 to deem mobile broadband internet access services as a common carrier service, making these services subject to the same regulations as fixed broadband internet access services. Below is an executive summary of OTI's reply comments:

Executive Summary:

The 2015 Open Internet Order gave the Commission the strongest legal standing to protect network neutrality and the public interest. The record shows broad support for the 2015 Order and demonstrates that the past two years have been a success for the online economy, consumers, and the internet’s continuing role as an open platform for free speech and innovation. In these reply comments, New America’s Open Technology Institute explains how the record supports preserving the 2015 Order and contains no justification for abandoning important consumer protections as outlined in the Notice of Proposed Rulemaking.

First, the record demonstrates that Title II is the appropriate classification for BIAS. The internet ecosystem has changed significantly since the 1996 Telecommunications Act, when most people accessed the internet via dial-up services and walled-garden portals like America Online and CompuServe. The lawmakers who drafted the 1996 Act were describing a completely different service to modern-day broadband internet access services. It is unreasonable to suggest that the lawmakers who drafted the 1996 Act intended for the transmission of data to be treated in the same manner as the data itself. After the flawed move to integrate telecommunications and information services in the Cable Modem Order in 2002, the Commission in 2015 took the appropriate step to return to treating transmission and applications as separable services. This regulatory approach accurately reflects the original intent of Congress and the current technical and business reality of broadband internet access service.

The record also makes clear that Section 706 cannot be the legal foundation for open internet rules. The Commission already tried this approach with the 2010 Open Internet Order, which the D.C. Circuit Court of Appeals overturned in 2014. Furthermore, Chairman Pai’s long, documented history of opposition to Section 706 as an independent source of authority makes it difficult to believe the Commission would rely on this authority to enact strong rules. The Commission’s current Notice of Inquiry on the deployment of “advanced telecommunications services” could further weaken the Commission’s authority under Section 706. Title II remains the clearest and strongest legal basis for net neutrality rules.

Second, the record contains no persuasive justification for repealing the ban on paid prioritization. Opponents of this bright-line rule do not acknowledge that it is designed to keep the internet a level, competitive playing field. The ability to pay for prioritization would tilt the playing field in favor of incumbent BIAS providers and a handful of large edge providers, while increasing costs for everyone else, including consumers. Further, as BIAS providers integrate with content services (e.g. AT&T and DirecTV, Comcast and NBCUniversal, and AT&T’s proposed takeover of Time Warner), their incentives to disadvantage competitors through expensive paid prioritization deals will only grow. These deals would distort the market and stifle small business growth.

Third, the record shows that antitrust law and other ex-post enforcement alternatives cannot adequately protect open internet principles. Voluntary commitments from BIAS providers would likely be weak and unenforceable. As the record demonstrates, the Federal Trade Commission is ill-equipped to single-handedly protect net neutrality without the FCC’s support. The FCC has a statutory mandate to protect telecommunications networks and has the rulemaking power to do so. It is the expert agency with respect to protecting consumers in the BIAS market, and nothing in the record justifies abandoning that expertise and leaving consumers and the market vulnerable to BIAS provider abuses.

Fourth, the record details how reclassifying BIAS as a Title I service would hurt the public interest—particularly in the contexts of the Lifeline program, consumer privacy, and network investment. Without Title II, the Commission’s legal basis for offering Lifeline support for standalone broadband service would weaken substantially. As a result, potentially millions of Americans could lose vital support for internet access, and the Commission would lose its best tool for bridging the digital divide. The loss of Title II would also eliminate the Commission’s strongest authority to protect consumer privacy in the BIAS market. The Commission’s role in this space is particularly important as BIAS providers have the ability to collect and disseminate nearly comprehensive information about their customers. Under Title I, the Commission would have little, if any, authority to promulgate strong rules to protect American privacy. Lastly, the loss of Title II would inflict substantial risk on the internet economy—which the record demonstrates has been thriving under Title II. For the past two years, Title II has promoted innovation at the edge and not harmed network investment. Upending that legal regime would inflict uncertainty on the market and risk chilling online investment for no discernible benefit to the public interest.

Fifth, the record shows that the Commission should preserve its oversight of interconnection agreements. Transit providers and third-party researchers submitted evidence demonstrating that the 2015 Order has deterred the kinds of interconnection congestion that harmed millions of Americans prior to the Order’s enactment. Moreover, the state of New York submitted evidence demonstrating that this congestion was part of a deliberate strategy that BIAS providers developed to extract new fees from interconnecting parties. All of this underscores precisely why the Commission must maintain its authority to adjudicate interconnection disputes and oversee agreements. The comments from several large BIAS providers and their trade associations are inaccurate and misleading and they should carry no weight in the current proceeding. The Commission should retain its authority to protect the American people from interconnection abuse.

Lastly, the record shows that the Commission should continue to enforce regulatory parity between mobile and fixed BIAS providers. The record contains broad support for this parity and makes clear that there is no technical or legal justification for disparate regimes. Broadband internet access is a telecommunications service and mobile BIAS is clearly a common carrier commercial service within the meaning of Section 332 of the Communications Act. In the modern era, mobile BIAS “is interconnected with the public switched network” because the service “gives subscribers the capability to communicate to or receive communication from [all] other users on the public switched network,” a network of networks that today includes the traditional circuit-switched phone networks as well as the IP-switched internet. Finally, the record supports maintaining a reasonable network management exception that is narrowly tailored to technical management to ensure that the open internet rules allow providers to manage their networks for technical considerations, but do not open a loophole that allows business decisions to dictate if and how consumers access various edge content and services online.