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Comcast: Title II Would Be Destabilizing, Counterproductive

The nation's largest cable operator has told the FCC that attempting to "reclassify" Internet access—Comcast's term—as a common carrier service would deter billions in investment needed for broadband deployment and would subject the industry and the FCC alike to "years of debilitating litigation."

In a FCC filing dated May 12, Comcast pointed out that it was already subject to net neutrality rules under its NBCU deal condition and that while it remains committed to Internet openness, Title II is definitely the wrong way to go.

"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.".

"Just ten years ago, the Commission and the Department of Justice expressly recognized these risks and went to considerable lengths to avoid the imposition of common carrier regulation precisely because [t]he effect of the increased regulatory burdens” likely would have been to prompt ISPs to “postpone or forego plans to deploy new broadband infrastructure, particularly in rural or other underserved areas."

Comcast said now that the court has signaled the FCC has the authority to regulate access under existing authority, and showed it the way to do that, Title II should be off the table.

"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.

"The last thing the Commission should do at this stage is to break from the long bipartisan approach that has borne such fruit to date and radically shift to an approach that would curtail broadband investment and impede adoption," Comcast said in a letter to the FCC.

The FCC plans to vote May 15 on a new draft of Open Internet rules that would use existing Sec. 706 authority to justify the rules, as a federal court instructed the FCC it could do, rather than go the Title II route, though the item will also ask for input on whether the FCC should impose Title II regs, likely only imposing some and forbearing others if it did decide to do that.

Comcast, echoing arguments made by AT&T, said that classifying Internet access under Title II would not prevent paid prioritization, since those regs only prevent unreasonable discrimination, so it would have to be viewed on a case-by-case basis, just as "commercially reasonable" discrimination would be treated under the proposed new 706-based rule proposal.

"There is no way to predict how a court would rule on a challenge to imposing Title II, and, in any event, Title II would not necessarily support greater constraints on Internet practices," Comcast said.

Then, there are the host of unintended consequences, said Comcast: "[R]eclassification could subject a broad range of currently unregulated parties to burdensome obligations designed for monopoly telephone companies, import the dysfunctional access charge regime to the exchange of Internet traffic, and halt the sharing of information necessary to many edge providers’ business models, among various other problems."