Why the FCC's authority over broadband must be clarified by Congress

It is with a tremendous sense of urgency that CWA joins with our brothers and sisters in the labor, environmental and civil rights movements to urge Congress to act quickly to clarify the FCC’s authority to protect an Open Internet and apply Universal Service Funding to broadband. At this critical juncture, creating our high-speed networks for the 21st Century are as critical to commerce as expanding roadways, electric service and telephone lines were to the 20th Century.

The decision by the D.C. Circuit Court of Appeals in the Comcast case has put into question the FCC’s legal authority to protect an open Internet and accelerate broadband deployment and adoption. We need Congress to quickly resolve this question because any other path would lead to years of litigation and regulatory uncertainty that will reduce broadband investment and industry jobs.

The U.S. lags behind the rest of the world when it comes to 21st century communications. Access to high speed broadband is essential to the economic success of all of our communities. America has fallen to 15th in the world in high-speed internet penetration and 28th in global speed comparisons. What that means is that it is harder for communities to spur economic growth, create jobs and bridge the digital divide. Today, most U.S. broadband networks can’t deliver the speeds necessary to run advanced applications and services that can support sustainable communities and enable cost-effective improvements in education, energy, health, and public services.

Regulatory Treatment of Broadband Internet Access

Prior to 2002, there was a debate regarding the proper regulatory treatment of broadband Internet access. Was it a Title II telecommunications service like voice telephony subject to extensive common carrier regulation, a more lightly regulated Title I information service, or a hybrid service with Title II (transmission) and Title I (computing functionality) characteristics?

Beginning in 2002, the FCC classified first cable modems (2002), then DSL (2005), and later wireless broadband and broadband over powerline as Title I information services. At the time, the FCC indicated that it would use its “Title I ancillary authority” to protect broadband consumers.

After the FCC classified DSL as a more lightly regulated information service, telecom carriers significantly increased broadband investment, spurring healthy competition between cable and telecom carriers stimulating first-generation broadband expansion.

The option of reclassifying the transmission portion of broadband Internet access from Title I to a Title II telecommunications service is fraught with challenges.

Reclassification will lead to legal challenge and regulatory uncertainty (up to two years through Supreme Court review) during which time the broadband providers will shift capital away from investment in broadband networks, with serious implication for jobs.

Reclassification of broadband as a Title II service while only applying some of the Title II provisions to broadband faces considerable legal hurdles. To justify reclassification, the FCC will have to argue that the market has become less competitive in the five years since it ruled that broadband was an information service. Yet, to justify forbearance, the FCC will simultaneously have to argue that the market is sufficiently competitive to relax most of its Title II rules. This Catch-22 legal predicament opens up years of litigation.

Moving Forward

It is critical to maintain stability and create the climate that will spur further investment and expansion. Just as government policies have helped bring Americans drivable roadways and affordable electricity and telephone service, we can ensure that every individual, family, business and community has access to and can use high-speed broadband.

As outlined in the letter that CWA and our coalition partners delivered to Senate Commerce, Science and Transportation Chairman John Rockefeller and House Energy and Commerce Chairman Henry Waxman Congress must move quickly to pass narrowly targeted legislation would:

• Make clear that federal Universal Service funding may be used to support broadband buildout and programs to encourage broadband adoption and use by low-income households;
• Establish the FCC Open Internet principles as the law of the land, ensuring that broadband Internet service providers (ISPs) do not prevent users from sending and receiving the lawful Internet content of their choice; running lawful applications and services of their choice, subject to the needs of law enforcement; and connecting their choice of legal devices that do not harm the network; all subject to reasonable network management;
• Require broadband Internet access, service, application, and content providers to make available to consumers transparent and accurate information, in widely spoken languages, including Spanish, about the capabilities and network management practices of their offerings;
• Ensure that broadband ISPs do not engage in unreasonable discrimination against any lawful Internet content, application, or service that harms competition or consumers.
• Ensure that minority business and entrepreneurs are given meaningful opportunities to participate in the build out of high-speed networks.

Such a narrowly tailored bill will allow us to move forward to make the job-creating investments necessary to implement the recommendations and meet the goals of the National Broadband Plan. We need action to once again make America a global leader.

Letter to Congress Regarding Broadband Reclassification