Broadband carriers speak out against FCC regulation

By Cecilia Kang
Washington Post Staff Writer
Tuesday, February 23, 2010

The nation's largest Internet service providers on Monday warned the Federal Communications Commission against any possible move that would put them more clearly under the agency's jurisdiction, saying that doing so could deter their investments in broadband networks.

The comments from AT&T and Verizon Communications come as the FCC awaits a pivotal decision from a federal appeals court that could undercut the agency's authority over those companies' Internet businesses. A ruling against the agency would likely derail FCC Chairman Julius Genachowski's signature policy objectives, including open-Internet rules and the reform of an $8 billion rural telephone fund to provide broadband access in underserved parts of the country.

Public Knowledge, a group that advocates digital rights, has urged the FCC to classify those Internet service providers alongside telephone services, which are firmly under the agency's purview. Some analysts say the agency would have to reclassify those services in order to remain relevant as the Web becomes a primary vehicle for communication and entertainment.

In a 14-page letter to the agency, AT&T and Verizon were joined by trade groups CTIA and the National Cable & Telecommunications Association. They argue that such a move would be "extremist," entailing too many onerous rules for the fast-moving broadband industry.

"The proposed regulatory about-face would be untenable as a legal matter, and, at a minimum, would plunge the industry into years of litigation and regulatory chaos," the companies wrote.

An FCC spokeswoman declined to comment. Genachowksi's senior adviser, Colin Crowell, has said the FCC can still win its court challenge. The case stems from Comcast's appeal of a 2007 ruling, which found that it violated open-access guidelines that prohibited network providers from slowing or blocking Web sites.

The agency has argued that its authority over ISPs derives from its supervision of other communications services, such as cable television. In an oral hearing early last month, three judges grilled an FCC attorney over whether that "ancillary authority" over broadband Internet services was enough to rule against Comcast.

Crowell told The Washington Post last month that if it didn't win its case, the agency would have to consider other options to clarify its authority, including a reclassification of Internet services. Advocates of such a change urge the agency to put ISPs under what is known as Title II common carrier services, which transport people or goods under regulatory supervision. Comcast, which is seeking the FCC's approval for its merger with NBC Universal, didn't sign the letter.

"We'll defer comment on reclassification until the D.C. Circuit decides our challenge to the actions of the previous FCC on due-process grounds," Comcast spokeswoman Sena Fitzmaurice said.

Broadband carriers said placing their services under Title II would be too restrictive.

"The commission should keep this Pandora's Box of Title II classification nailed shut," the companies wrote.

Consumer advocates argue the opposite. They say that previous FCC moves to ease regulation of broadband providers are now undermining the agency's attempts to address problems in the Internet age.

"The same lobbyists who purport to want 'Broadband for America' are now telling the FCC that the agency should not engage in rulemaking that would achieve it," said Ben Scott, policy director for Free Press, a public-interest group. "The commission must have the authority to promote universal access to affordable broadband."

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