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Cable Operators Unite to Slam Title II

WASHINGTON — Comcast may need to keep on the government’s good side as it tries to navigate its proposed Time Warner Cable merger, but the threat of Title II was enough to move it to action last week, joined by the National Cable & Telecommunications Association collectively and many of its members’ CEOs.

Comcast has said it was supportive of Federal Communications Commission chairman Tom Wheeler’s attempt to revamp the rules. For one thing, the move would simply bring other cable operators under the same no blocking and no unreasonable discrimination regime Comcast is already subjected to under a mandate attached to its acquisition of NBCUniversal.

But that support was when the FCC was attempting to use its existing authority under Section 706 of the Telecommunications Act.

Under heavy criticism of that approach, Wheeler modified the draft rules last week to bring the option of classifying broadband as a common-carrier service under Title II of the Act more to the fore as a viable alternative.

On Thursday, a divided commission approved a new approach to preserving an Open Internet, using Section 706 authority, but signalling it could still wind up employing Title II.

Comcast, the NCTA and big Internet-service providers separately and jointly told the commission in no uncertain terms to steer clear of Title II, saying it would be a disaster.

Comcast CEO Brian Roberts signed on to a letter to Wheeler last week from a Who’s Who of cable-company chiefs, including Time Warner Cable chairman and CEO Rob Marcus, Cox Communications president Pat Esser and Charter Communications CEO Tom Rutledge (see cover story).

They told the FCC not to fall prey to a publicity campaign that “conflated the need for an open Internet with the purported need to reclassify broadband Internet access services as Title II.” Tech companies and advocacy groups have argued that anything short of Title II will not sufficiently protect consumers from discrimination by ISPs.

Echoing a growing theme, the cable CEOs said classifying ISPs under Title II would not even prevent the paid prioritization that has become a hot-button issue for critics who fear an on-ramp to a bifurcated information highway of slow and fast lanes.

“Not only is it questionable that the commission could defensibly reclassify broadband service under Title II, but also such an action would greatly distort the future development of, and investment in, tomorrow’s broadband networks and services,” they said.

Comcast, in a filing at the FCC, said Title II would deter billions in investment and would lead to “years of debilitating litigation.”

“Title II would spark massive instability, create investor and marketplace uncertainty, derail planned investments, and slow broadband adoption. It is hard to imagine a more perilous recipe for pursuing the critical national objectives set forth in the National Broadband Plan,” Comcast said.

Now that the U.S. Court of Appeals for the D.C. Circuit has signaled that the FCC has the authority to regulate Internet access under existing authority, and has showed it the way to do that without Title II, that option should be off the table, Comcast said.

“While the commission understandably had contemplated reclassification theories before the court upheld its authority to regulate information services, it would make no sense to pursue such a high-risk path now that the D.C. Circuit has validated the commission’s analysis of potential threats to Internet openness and held that the commission has ample power to prohibit anticompetitive conduct and prevent harm to consumers,” it said.

Comcast was part of the negotiations that produced the original network-neutrality rules under then-chairman Julius Genachowski, which was a compromise from the “nuclear option” of a Title II approach.

Comcast and other ISPs will again be backing Wheeler’s Section 706 approach as an alternative to Title II: “The last thing the commission should do at this stage is to break from the long bipartisan approach that has borne such fruit.”

The National Cable & Telecommunications Association also felt the need to try and take some momentum out of the Title II push. The NCTA fi rst blogged its displeasure, then made it official in an FCC filing. “[T]he existing transparency rules provide a strong foundation for promoting Open Internet principles, and, to the extent the Commission determines that additional safeguards are necessary, the Verizon decision provides ample leeway to adopt such measures pursuant to Section 706 of the Telecommunications Act. In light of that recently confirmed authority, it is wholly unnecessary to pursue a Title II reclassification theory. It also would be immensely destabilizing.”

For one thing, the NCTA made clear that the Title II approach would land the new rules in court. The NCTA has said it would be at the table to help draft supportable net neutrality rules, as it did the first time.

In both instances, a main goal is to avoid the “nuclear option” of Title II.

NCTA president and CEO Michael Powell knows a little bit about the issues, having been on the commission when classifi cation issues were being debated and decided back in the early 2000s. In a posting on its blog, the NCTA pulled no punches with those calling for Title II classification.

“In recent weeks, as the FCC prepares to take comment on new Open Internet rules to replace those struck down by the courts, D.C. has borne witness to a steady drumbeat of misinformation and scare tactics designed to bully regulators into adopting a radical and unwarranted shift in Internet regulation,” the NCTA said.

It called that discussion increasingly “nasty, personal and irrational.”