Comments Highlight Deep Divide Over FCC's Proposed Rollback of Title II Net Neutrality

The FCC posted over 1.1 million comments as of late Tuesday, bringing the total to 9.71 million in docket 17-108. The agency posted 297,481 comments Monday after posting more than 3 million last week, including almost 800,000 on a Net Neutrality Day of Action June 12 (see 1707120017). Most substantive comments from major players were posted here this week (see 1707170045). How the FCC plans to analyze the comments isn't clear (see 1707180019).

At least 14 state attorneys general opposed rolling back Title II, including New York's AG (here) and, jointly, those of Illinois, California, Connecticut, Hawaii, Iowa, Maine, Maryland, Massachusetts, Mississippi, Oregon, Vermont, Washington and the District of Columbia (here). Sixty-two mayors opposed reversing Title II (here), as 12 signatories were added to a previous letter. San Francisco filed in support of the existing policy.

Public-interest groups made extensive filings backing the 2015 order. "By returning to Title II in 2015, the Commission placed its longstanding Net Neutrality policies and principles on solid legal footing. It returned to the common carriage foundation that has always undergirded the transmission of information (including internet data) over telecom networks," Free Press said. AARP opposed going "back to a Title I future," said the FCC couldn't support a no-blocking rule without Title II, and called the 2015 order reasonable "light touch" regulation. Also filing were Public Knowledge with Common Cause, and Consumers Union.

Librarians are "deeply concerned" the NPRM’s "direct attacks on the established open internet rules and the legal foundation for the rules threaten the fundamental principles of a free and open internet," three national librarian groups said. Higher-education groups supported "maintenance of strong, enforceable net neutrality policies and rules to protect and promote an open Internet" but offered some wiggle room: "While Title II provides a sound legal foundation for the current rules, the overwhelming concern of our organizations is the maintenance of strong, enforceable rules that will ensure an open Internet." A group of internet engineers, pioneers and technologists objected to the NPRM and said the FCC's "technical flaws" could be "disastrous."

Edge providers and others backed robust rules, with some showing flexibility on Title II. "We are concerned that removing or weakening open Internet rules will disrupt [internet] fundamentals and undermine the benefits they provide," Amazon said, urging the FCC to "maintain strong open Internet protections." Netflix opposed "rolling back existing protections." Cogent Communications said the FCC should keep Title II, but if it doesn't, must ensure interconnection safeguards. Mozilla (here) and Vimeo (here), and Data Foundry and Golden Frog (here), Level 3 (here) and the Computer & Communications Industry Association (here) were among the many others supportive of the existing net neutrality regulation.

Industry and Allies

Cable and other ISP voices opposed a Title II framework while supporting an open internet in different forms.

"Title II imposes substantial costs ... that have nothing to do with open Internet principles, NCTA said, citing "transparency, "no blocking," "no throttling" and "no anticompetitive paid prioritization." NCTA said the FTC could enforce ISP open-internet promises, and it cited Section 706 broadband authority upheld by a court and Title I ancillary authority for certain purposes. NCTA and others backed a congressional solution.

For now, the FCC should "undo the harm" of the 2015 order and restore Title I, USTelecom said, citing countries with "heavy-handed" regulation as suffering from low investment. ITTA urged the FCC to scrap rules against blocking, throttling and paid prioritization but ensure any rules apply to both fixed and mobile providers. The Fiber Broadband Association said ISPs aren't "gatekeepers."

AT&T backed an open internet but called the 2015 Title II order “an unprecedented regulatory overreaction” that “grossly exaggerated the need for public-utility-style regulation while ignoring its costs.” Broadband deployment remains as “unfinished product,” the telco warned. Verizon, which challenged a 2010 order, said the agency has some Section 706 authority to impose limited rules. “These rules may not replicate Title II; the Communications Act ‘expressly prohibits’ the Commission from imposing common-carrier regulations on entities that are not common carriers,” the carrier said.

Wireless Comments

Wireless commenters mostly cast Title II regulation as a threat to 5G and deployment of wireless infrastructure.

“Title II regulation undermines consumer interests by deterring innovation and suppressing investments by providers large and small,” CTIA said. It filed a statement by economist Robert Hahn. “From an economic perspective, a heavy-handed approach to regulation that relies on ex ante intervention and/or vague orders is not well-suited to dynamic industries,” he wrote.

“An open internet has always been and continues to be an essential aspect of the American wireless consumer experience, and Title II reclassification was based only on hypothetical future harms,” Mobile Future said. Wireless capital expenditures peaked at $33.1 billion in 2013, but fell to $26.4 billion in 2016 in the wake of reclassification, the group said. “Title II increases regulatory burdens and uncertainty, which, in turn, reduces the incentives to invest and innovate,” the Wireless Infrastructure Association said. Sprint said parts of the 2015 rules, especially the conduct standard, are too “vague and broad.”

Among the many others backing a return to Title I were: Charter Communications (here), the American Cable Association (here), Oracle (here), the Wireless ISP Association (here), Frontier Communications (here), Alaska Communications (here), Adtran (here), The American Legislative Exchange Council (here), Tech Knowledge (here), and scholars and experts (for example, here, here, here).

Net Neutrality Notebook

Deputy Press Secretary Sarah Sanders said the White House "believes that rules of the road are important for everyone -- website providers, internet service providers, and consumers alike." The previous administration "went about this the wrong way by imposing rules on ISPs through the FCC's Title II rulemaking power," she told reporters. "We support the FCC chair's efforts to review and consider rolling back these rules, and believe that the best way to get fair rules for everyone is for Congress to take action and create regulatory and economic certainty."

Fight for the Future faced criticism Tuesday from the Internet Association and others over its plan to again target members of Congress who support an FCC rollback of its 2015 Title II net neutrality order. FFTF plans to post billboards in the districts of House Speaker Paul Ryan, R-Wis.; Senate Commerce Committee Chairman John Thune, R-S.D.; House Commerce Committee Chairman Greg Walden, R-Ore.; and House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., among others. Criticism focused on FFTF's initial plan to include House Majority Whip Steve Scalise, R-La., among targeted lawmakers. Scalise is recovering from a gunshot wound sustained last month during the shooting incident at a practice for members of the Republican congressional baseball team (see 1706140072). "Accusing a Member of Congress of 'betrayal' while he's recovering in the hospital is despicable," IA CEO Michael Beckerman said. FFTF Campaign Director Evan Greer said that the group doesn't plan to target Scalise and that inclusion on the initial list was inadvertent.

Commissioner Mignon Clyburn had two "asks" for people who question her support for strong open internet protections. "I implore you to call up your broadband service provider, and ask them this, are there currently any rules on the books that prevent you, broadband service provider, from collecting and selling my personal data, when I use your internet connection?" she said at an Appalachian Ohio-West Virginia connectivity summit, according to prepared remarks. "For those of you who understandably question, if I am simply a partisan holdover and am out of sync with the times, I urge you to ask the FCC leadership this: if the current open internet rules are repealed, will the FCC still have clear legal authority, to subsidize broadband deployment here in Appalachia, to ensure competitive access to the existing monopoly infrastructure here in Appalachia, or, will there be a referee on the field when it comes to consumers’ experience and protections when it comes to their broadband provider here in Appalachia?"

The FCC denied a National Hispanic Media Coalition petition to extend by 60 days the July 17 and Aug. 16 initial and reply comments deadlines for the proceeding (see 1707070051). The Wireline Bureau rejected the NHMC's argument the 60-day extension was justified to give the agency time to produce 47,000 open internet complaints and related documents the group is seeking under a Freedom of information Act request, said an order in Tuesday's Daily Digest.