Skip to main content

Free State to FCC: Set ISPs Free to Invest

Despite assertions by Title II fans that the common carrier reg regime has not adversely affected broadband investment, the Free State Foundation begs to differ and says it has the data to back that up.

That came in reply comments—due Aug. 30—on FCC Chairman Ajit Pai's proposal to roll back Title II and reconsider the rules against blocking, throttling and paid prioritization.

Free State pointed to research by its own Michael Horney that indicated Title II had depressed broadband capital investment by $5.6 billion in 2015 and 2016. The Title II reclassification went into effect June 12, 2015.

Related: Survey: Most Verifiable FCC Comments Favor Title II Repeal

But Free State says that is of more than scholarly interest and that that foregone investment has hurt the economy and job creation.

He says the other side has little evidence to back their dismissals of the economic impact argument.

It says that Title II fan INCOMPAS, whose members include major edge providers, is asserting a baseline of zero investment without Title II to suggest reclassification has not hurt investment, an amount Free State says no one could plausibly argue would have been the case.

Related: Gigi Sohn: Aug. 30 Could Signal Closing of Open Internet

Free State also weighed into the information service vs. telecommunications service debate. "Pro-regulatory commenters deliberately mislabel broadband ISPs as 'mere conduits' for end users to access third-party online content," Free State said. "Even if broadband internet access services offered only so-called 'gateway' functionalities for accessing third-party content on the Internet, they would meet the statutory definition of an information service."

Fans of the telecommunications service of internet access argue that it is that content delivery function that makes ISPs subject to Title II nondiscriminatory access provisions. But the FCC and Supreme Court have both seen it differently in the past.

The FCC's reclassification of ISPs as information providers not under Title II would return broadband privacy oversight to the Federal Trade Commission, something Free State favors.

Related: More Net Neutrality Billboards Go Up

"In opposing the Notice’s proposal to return jurisdiction over broadband privacy to the Federal Trade Commission, pro-regulatory commenters ignore the superior institutional capability of the FTC and its track record of protecting privacy for decades prior to the Title II Order," Free State said in response.

Opponents of FTC oversight point out that the agency is confined to enforcing violations of privacy laws, rather than having the authority to establish its own privacy rules. But Free State says that fails to acknowledge the effectiveness of deterrence through case-by-case enforcement.

For example, Just two weeks ago the FTC reached a settlement with Uber in which the company agreed to adopt a comprehensive privacy and data security program, with periodic audits, to settle a Federal Trade Commission complaint.

Earlier this week the company said its app would no longer collect information from users of its service after their trips were completed, which drew praise from Sen, Al Franken (D-Minn.) a leading voice for privacy protections who had pushed Uber on the privacy issue.

Free State says that the FCC should not ban zero-rating offerings but should eliminate the "general conduct standard" the 2015 Open Internet order adopted to deal on a case-by-case basis with conduct not under bright line rules but that posed a threat to an Open Internet. It called the former pro-consumer and pro-investment and the latter chillingly vague.

(Photo via Rock1997Image taken on Jan. 18, 2017 and used per Creative Commons 2.0 license. The photo was cropped to fit 16x9 aspect ratio.)

Jessika Walsten
Jessika Walsten

Jessika is content engagement director of Broadcasting + Cable, Multichannel News and NextTV. She has been with the brands in various roles since 2013. In her current role, she works primarily behind the screen, keeping an eye on the website and fixing any site bugs. A graduate of USC Annenberg, Jessika has edited and reported on a variety of subjects for NextTV, including profiles on industry leaders and breaking news.