With the FCC on the cusp of moving forward on Chairman Julius Genachowski’s “third way” proposal, the ACA is attempting to delay the process.
The ACA wants to hold the agency to a set of legal processes to justify its attempts to reclassify broadband as a communications service and apply a proscribed subset of Title II regulations to the service.
The FCC issued a notice of inquiry earlier this year and has indicated its intent to move into a rule-making process.
The ACA submitted a document to the FCC stating that if the Commission intends to make new rules changing the classification of broadband, it will first have to go through several other processes.
One process defined under the Administrative Procedure Act (APA) compels the agency to conduct a formal rulemaking, while another defined by the Regulatory Flexibility Act (RFA) requires the FCC to quantify the burdens on small operators of reclassification and steps it could take to ameliorate them.
The ACA’s letter goes beyond a simple attempt to delay the process. The organization is flat out against the attempt, as is the NCTA. Both submitted documents have strikingly similar statements that there is no justification for the reclassification and threaten that the “uncertainty” resulting from the imposition of new rules on broadband will lead broadband providers to stop investing in the service.
The NCTA document concludes: “The Commission has no legal authority to classify any part of broadband Internet access service as a common carrier offering. Such a reclassification would be fundamentally at odds with the nature of Internet access service, which remains the information service that the Commission has consistently found it to be. Not only would reversing this long-standing policy be legally unsupportable, it would also thwart rather than promote investment in broadband facilities and undermine the serious reliance interests of broadband providers and others in the existing regulatory regime. The Commission retains ancillary authority to meet legitimate policy objectives. Any ambiguities in the Commission’s authority should be addressed by Congress rather than through an effort to impose legacy common carrier regulation on broadband.”
The ACA document says: “Subjecting broadband Internet access service to public-utility-type regulation under Title II would undermine job-producing broadband investment and innovation – and ultimately undermine national priorities such as education, health care, energy, national security and economic growth. Initial investor response to even the possibility of the ‘third way’ approach demonstrates the negative implications of this scheme for future investment in broadband networks and services.”
Reclassifying wireline broadband access as a common carrier service runs the risk of imposing costly and disproportionate compliance burdens on independent broadband providers, according to ACA. These burdens include both direct economic regulation of the rates, terms, conditions and practices associated with the provision of Internet service and the administrative recordkeeping, reporting and filing obligations of common carriers under existing FCC rules.
Genachowski has stated explicitly that the FCC is not looking for the power to regulate rates.
