ITIF submitted reply comments to the FCC as to how best support a thriving Internet ecosystem, in all parts, including the core and the edge. There is considerable diversity of positions expressed in the record, with many comments appearing notably polarized. On one hand, some filers are strongly in favor of maintaining the classification of broadband Internet access service (BIAS) as a common carrier under Title II of the Communications Act, with the strict bright-line rules and broad authority for the Commission to intervene in the provision broadband access technology afforded by the 2015 Title II Order. Others advocate for a far more relaxed approach, leaving oversight to the Federal Trade Commission or generalist courts. Still others advocate for relatively simple brightline rules to prevent blocking, throttling, or paid prioritization, but are silent as to the legal mechanism to achieve those rules.
ITIF continues to believe the best approach is to chart a path down the middle of these options: Recognizing there are legitimate concerns raised by a number of commenters, we reiterate the need for pragmatic problem solving. The FCC has the authority to craft a compromise that simultaneously gives users and edge providers assurance that their access to the Internet will remain unimpeded—that the Internet remains freewheeling and open—and gives those building and operating these capital-intensive systems the flexibility to manage and improve last-mile networks, and offer quality-assured services on a commercially reasonable basis. This is not, nor should it be, an either-or proposition.
The Commission proposes to reclassify broadband Internet access service as an information service under Title I of the Communications Act and reinstate mobile broadband service as a private mobile service. These efforts are laudable, and there is considerable support in the record for the Commission should follow through on these aspects of the proposal. The proposal, however, appears to take a skeptical stance as to whether the FCC has authority over broadband whatsoever. The Verizon decision has made clear that section 706 gives the Federal Communications Commission (FCC) a claim to an affirmative grant of authority to make rules more than sufficient to protect and promote the openness of the Internet.
The answer is essentially antitrust-informed regulation—relying on section 706 to institutionalize flexible expert oversight, with processes designed to prevent capricious blocking or degradation of traffic by BIAS providers, but also allow new BIAS services based on traffic differentiation. Working to put guardrails on the “virtuous cycle” theory, bringing clarity and predictability to an antitrust-like, case-by-case approach can allow for those pro-consumer, pro-competition deals to go forward on an individually negotiated basis while also protecting the openness of the Internet. This is clearly the superior policy choice compared to over-enforcement under Title II or, on the other hand, abdicating authority to antitrust authorities.
No doubt, Congressional action is the right solution long-term. But the Commission should not count on legislation any time soon. Instead of abdicating even basic oversight of the most important communications platform of today, the Commission should utilize the authority courts have recognized under section 706 to create light-touch rules of the road overseeing BIAS providers.