Cable broadband operators are concerned that localities could start putting a thumb on the scale for Google Fiber when it comes to broadband service — making it a less-free market in which to compete for eyeballs and subscription dollars — and they want the Federal Communications Commission to nip that notion in the bud.

The current battleground over the extent to which municipalities can build out broadband is West Des Moines, Iowa. Incumbent provider Mediacom Communications wants the FCC to require the city to stop construction on Google Fiber‘s network, stop marketing service to residents and reconfigure the network and contract. 

Also Read: NCTA Says Google Fiber Definition of Competition Is Too Narrow

Opponents of the petition — comments were due Oct. 7 — said the FCC does not even have the authority to grant it.

Mediacom earlier this year asked the FCC to declare that the preferential treatment it says the city was extending to Google Fiber violated the Communications Act requirement that providers get nondiscriminatory access.

ACA Connects — the trade group representing Mediacom and other smaller, independent cable providers — filed comments in the proceeding saying preferential rates, terms and conditions obtained by Google Fiber clearly did not fit the competitively neutral directive of the Communications Act’s Section 253.

ACAC suggests the potential problem goes further than West Des Moines, and the commission needs to recognize that.

“[T]he FCC should recognize that the City’s alleged actions are of general concern to all providers regardless of location,” ACAC said in its comments. “Incumbent providers of telecommunications service and new entrants alike, including ACA Connects members, are concerned that actions by state or local governments in providing access to [public rights of way], including those like the City’s, may skew the market, such that they cannot compete in a fair and reasonable legal and regulatory environment as envisioned by Section 253.“

Muni Advocates Weigh In

Not surprisingly, Next Century Cities, which comprises advocates of municipal broadband service, filed in opposition to the Mediacom petition.

Next Century told the commission that Mediacom was trying “to prohibit a local government’s public-private partnership agreement that is designed to increase competition and expand broadband service options for residents.” It said the declaratory ruling would set the “negative precedent” that could discourage cities from forming public-private partnerships to close the digital divide.

Next Century was certainly suggesting ACAC‘s fear that not declaring such muni deals with Google Fiber violated the Act could encourage others was well-founded.

Also Read: More Muni, More Money

“Local officials nationwide are exploring opportunities to bring high-quality, affordable broadband within reach for residents and businesses,“ Next Century said. “These initiatives are often necessary, innovative, and community-driven, yet face numerous obstacles,“ including what it called "federal interference," and what ACAC would call the obstacle that favoring Google Fiber violates FCC rules.

But Next Century said that even if the FCC wanted to invalidate the Google Fiber deal, it gave up that authority when it reclassified broadband as an information service under Title I of the Communications Act. “Mediacom‘s complaint only pertains to the deployment and delivery of broadband Internet access service and does not affect the delivery of telecommunications services,” Next Century argued. “Therefore, the commission lacks authority to rule on this matter.”

Google Claims Mischaracterization

In its comments, Google said Mediacom‘s petition mischaracterizes its agreement with the city, which it says is not a grant of monopoly control of conduits; is not a subsidy to the company; grants it no special permitting or access rights; and is not on more favorable financial terms than other all-fiber ISPs.

Besides, the FCC has never been in the business of rewriting private contracts and should not start now, it said.

Among those filing in support of Google and West Des Moines were INCOMPAS, the National Association of Telecommunications Officers and Advisers (NATOA), the U.S. Conference of Mayors, and National League of Cities, among others.

INCOMPAS, whose members include Google, urged the FCC to deny the petition, saying West Des Moines was just trying to create an open conduit network that will provide fast, competitive fiber to residents throughout the city.

Municipal networks have a friend in the White House. President Joe Biden has signaled that he would favor targeting broadband subsidy money to municipal nets and public-private partnerships, which he has signaled equates to better and cheaper broadband service and cable broadband providers argue often leads to failed efforts and taxpayers holding the bag.

USTelecom told the FCC this week it supports a free and open Internet, just one defined as "unencumbered by unnecessary regulations." 

It was filing reply comments in a court remand of portions of the FCC's 2018 Restoring Internet Freedom order, most of which the court upheld. 

Related: NCTA Says Record Supports FCC Net Neutrality Dereg 

The court asked the FCC to better explain why it had concluded that reclassifying internet access as an information service not subject to common carrier mandatory access rules and eliminating the rules against blocking, throttling and paid prioritization did not harm public safety, pole attachments or the FCC's low income broadband subsidies. 

USTelecom said the RIF order benefitted public safety and did not undermine either the pole attachment regulatory framework or the Lifeline broadband subsidy. 

As have other ISP commenters, USTelecom pointed to the increased investment prompted by the deregulation as benefitting first responders generally and the consumers "who rely on such infrastructure to generate and receive important public-safety communications." 

Those who have suggested there could be some negative impact on public safety are generally referring to the ability to block or throttle if that affected first responder communications. 

But in its final analysis, USTelecom says the record clearly demonstrates that "the overwhelming benefits of the restored Title I classification vastly outweigh the purported costs (if any) of abandoning the outdated, common carrier regulatory framework applicable to broadband for the scant two years preceding the RIF Order." 

Waiting. That’s the name of the game for those anticipating the U.S. Court of Appeals for the D.C. Circuit’s decision on the Federal Communications Commission's Restoring Internet Freedom order repealing Title II rules for broadband. 

The case was argued on Feb. 1 of this year, so the D.C. Circuit could hand down a ruling any day now. But regardless of whether the decision is uphold or overturn, Americans deserve action on net neutrality from Congress. Statutory permanence for internet openness is the only way to end the ongoing uncertainty shrouding the internet ecosystem due to ever-changing rules. As we await the D.C. Circuit’s decision, it’s worth recalling what’s at stake.

In 2015, the FCC ruled that broadband is a Title II telecommunications service, subject to the common-carrier rules developed for the predigital age of monopoly-controlled telephones. With this ruling, the FCC abandoned the previous 20 years of light-touch regulation of broadband first adopted during the Clinton administration. During those two decades of regulatory certainty, America experienced a golden age of broadband investment that made our communications network the envy of the world.

With the FCC’s 2015 ruling, investment in broadband networks declined for an understandable reason: Carriers simply did not know which of the FCC’s Title II authorities would be imposed upon them and when. Would rates be regulated? Would the FCC require that network elements be unbundled and made available to competitors below the broadband carriers’ costs?

The regulatory uncertainty created by the 2015 rule placed a severe damper on investment at the very time when mobile broadband carriers are preparing to deploy 5G networks, which will require unprecedented levels of investment and enable advances such as autonomous driving and Internet of Things (IoT) connectivity.

Recognizing the mistake of the 2015 order, in 2018 the FCC restored the status of broadband as a Title I information service subject to the light-touch regulation that had prevailed with bipartisan support from the first commercialization of the internet until 2015.

Further, the FCC made the right call to exercise preemption of conflicting state and local regulations. So, for that matter, did the FCC in 2015 when it included preemption in its order imposing monopoly-style telephone service regulation on the broadband internet. The internet doesn’t recognize state lines, and in a national digital economy, uniform national regulation is essential.

The D.C. Circuit is giving careful consideration to the question of whether the 2018 FCC order is valid. Whatever the outcome, the matter should not rest with the court’s decision. It’s essential that Congress put to rest the net neutrality debate, which has now raged since 2003. A simple formula for a statutory resolution would include the codification of net neutrality protections along the lines of the FCC’s 2010 Open Internet Order, which was endorsed by broadband providers and by companies that provide content at the internet edge. The statute would also designate broadband as a Title I information service in recognition of the regulatory construct that prevailed for all but two years of the past two decades. The regulatory certainty of that statutory permanence would open the door to the tens of billions of dollars of investment required to build our 5G future.

If Congress fails to act, we can anticipate a never-ending seesaw between Title I and Title II status for broadband with every change in administration.

Despite the passion of the net neutrality debate, I believe compromise is possible. Why? Many prominent Republicans have now accepted the need for the core protections of net neutrality (one Republican bill is modeled after former Democratic Rep. Henry Waxman’s net neutrality bill from 2010). And senior Democrats should accept information services status for broadband if the core net neutrality protections are embedded in statute.

Congressional action would put the issue behind us, obviate the need for further attention from the courts, and set the internet on course for another decade of growth. The stage would then be set for Congress to adopt other needed online protections for consumers, including a uniform requirement that all participants in the internet ecosystem — from edge providers to the ISPs that connect users to the network — protect the privacy of internet users.

Only Congress can, at last, bring an end to the longest running and most intense telecommunications debate of the 21 century.

Rick Boucher was a member of the U.S. House of Representatives for 28 years and was chairman of the House Energy and Commerce Committee's Subcommittee on Communications and the Internet. He is honorary chairman of the Internet Innovation Alliance (IIA) and a partner in the Washington, D.C., office of law firm Sidley Austin.

The FCC has declared that wireless text messages--SMS and MMS--are information services (Title I), not telecom services (title II), making it easier for them to compete with SnapChat and other lightly regulated instant messaging services.

The item also concludes SMS and MMS are not functional equivalents of commercial mobile services.

That was also billed as a way for service providers to continue to protect their customers from span and scam robotexts, at least by the Republican majority over the objections of Democrat Jessica Rosenworcel (and Hill Democrats down the street). The vote was
3-1.

It was something of a mini-reprise of the Title II/Title I net neutrality rule debate, with a group of nine high-profile Democratic senators having told the FCC that classifying texts as Title I would give carriers the power to censor or favor speech.

They said it would allow them to block text messages to favor either their own texting services or to stifle free speech, analogous to the harms they envisioned for the Restoring Internet Freedom order's reclassification of internet access as Title I and the elimination of prohibitions on blocking, throttling and paid prioritization.

That FCC declaratory ruling on text messaging denies two petitions to declare text messages a telecom service. Texts had not previously been classified and the petitions gave the FCC a chance to weigh in.

Related: Democratic Sens. Have Message for FCC: Texting Should Be Title II

The FCC says a text messaging service provides for storing and retrieving information, so it is like email. It also finds that text messaging, like wireless broadband service, is not a commercial mobile service because it is not connected to the public-switched network.

FCC chair Ajit Pai said that given that consumers open 98% of SMS texts, Americans trust text messaging, which is why carriers already prevent the majority of robotexts using anti-spoofing messages and other tools. But some want the FCC to curtail these efforts, which he said would open the floodgates to robotexts along the lines of the current flood of robocalls under Title II common carrier phone service.

Pai said wireless providers are empowered to continue preventing a flood of text messages. He also said the FCC should not make it easier for spammers to bombard consumers with unwanted texts, but that that is what would happen if they were subject to common carrier regs under Title II, as mass texting companies have asked. He said he refused to allow robotexts to infest phones. "We stand with the American consumer."

Commissioner Michael O'Rielly said that text messages are not interconnected and should not be subject to common carrier regs and that the ruling will allow text messaging services to better compete with instant messaging services like Snapchat or WhatsApp.

O'Rielly pointed out that the next generation of texting service will also be considered Title I. But O'Rielly also said the FCC should finally classify VoIP as an information service.

Commissioner Brendan Carr said the decision simply clarifies the status quo, but said neither the facts nor the law matters to those interested in the "partisan politics of dissent." He said such apocalyptic rhetoric was SOP for "that crowd."

He said the same groups that predicted doom and gloom after the Restoring Internet Freedom order classified ISPs as Title I services "trotted out" their "sky is falling" rhetoric, and that would be similarly proven untrue.

Rosenworcel, who strongly opposed the FCC's deregulation of net neutrality rules, was not celebrating the latest Title I classification. “In [today’s decision], the Federal Communications Commission continues its quest to dismantle the regulatory frameworks that protect Americans and that were intended to make phone, cable, and internet service more fair and more affordable," she said.

"We do that here by considering a petition that asks us to affirm what should be obvious—that text messaging is “telecommunications”—which is to say that when you send a text, you expect that your carrier will send it where you want it to go without changing its content or blocking it. It’s that simple. But instead of using this common-sense approach, this agency does the opposite. We twist the law to reach the conclusion that you no longer have the final say on where your text messages go and what they say. That means your carrier now has the legal right to block your text messages and censor the very content of your messages...This agency did the same thing with internet service last year."

She said the FCC suggesting the item was all about robocalls was deceptive and burying the lead that the item was about big companies, not blocking robotexts for consumers.

Stakeholders were quick to respond.

“The FCC’s action definitively classifying wireless text messages as an ‘information service’ is overdue, so it’s especially welcome," said Randolph May, president of the Free State Foundation, which had urged the FCC to take the step. "It’s consistent with the law, and the classification reinforces the fact that the wireless providers possess flexibility to take actions to prevent unwanted spam. If they ever abuse this power, consumers have alternatives from which to choose.”

“We commend Chairman Pai and the FCC for protecting consumers from an avalanche of messaging spam and allowing them to continue to benefit from a flourishing and competitive messaging ecosystem,"said CTIA SVP Scott Bergmann.

“The FCC has an obligation to promote competition and freedom of speech over our telecommunications networks,” said Sen. Ed Markey (D-Mass.), one of a number of Democratic senators who had registered their displeasure with the FCC's proposal before the vote. “With this action, the FCC stifling free speech by giving telephone carriers the freedom to block any text message they wish, potentially harming competition and our democracy values. Congress can right this wrong, which is why I intend to introduce legislation to rescind this order and establish appropriate safeguards to protect this vital means of communications.”

“Americans today are sent dozens of spam text messages, yet the channel is comprised of less than three percent spam," said John Lauer, co-founder and CEO of Zipwhip, of the text messsaging decision. "That is because texting providers such as my company, Zipwhip, are able to monitor for and subsequently block fraudulent messages. In fact, in any given month, we will toss out more than 20 percent of texting traffic due to fraudulent messages such as loan scams, fake credit card alerts, and false bank notices. This not only shields consumers from abuse but keeps text inboxes the high-priority channel they have come to expect. Consumers can continue to expect texting to stay spam-free thanks to today’s FCC ruling classifying texting as an information service. We congratulate the Commission on this vote and appreciate the Commission’s apparent intention to apply the same status to rich communication services (RCS). As the next-generation of SMS, the same concerns around spam will apply to RCS and we are encouraged by the FCC’s forward-thinking approach to safeguarding against abuse before it takes place.”

“The Federal Communications Commission’s declaratory ruling classifying wireless messaging as an information service is a much-needed cleanup of an issue left unresolved for more than a decade," says Roslyn Layton, visiting scholar at the American Enterprise Institute. "Other countries don’t have the information and communications services distinction that the U.S. has, and this decision ensures Americans maximum enjoyment of texting services and protection from unwanted spam. Any harms that arise can be addressed by strong oversight from the Federal Trade Commission.”

“We’re pleased to see the FCC continue to move forward on making more spectrum available to help the U.S. win the global 5G race," said CTIA SVP Scott Bergmann.

“AT&T takes very seriously our commitment to protect consumers from unwanted text messages, and this is why we strongly support today’s declaratory ruling," said EVP  Joan Marsh. "This action empowers wireless providers to continue to protect consumers from spam and robotexts, while safeguarding legitimate texts.“As the industry upgrades from traditional SMS messaging to a more sophisticated protocol, AT&T is leading efforts to ensure the delivery of trusted traffic while minimizing inadvertent blocking. These efforts include the introduction of a ‘tagging’ pilot that assigns a trust level to certain traffic, adopting an AT&T Code of Conduct with simple rules and guidelines for pushing through legitimate traffic, creating feedback loops that provide timely information when spam issues arise, and developing a pilot False Positive Portal that enables the reporting of inappropriate blocking and provides a mechanism to request unblocking."