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ISPs Warn FCC Against Title II Regulation of Web Access

Internet service providers (ISPs), with the notable
exception of Comcast, fired off a letter to FCC Chairman Julius Genachowski
Feb. 22 warning that trying to classify Internet access as a Title II service
subject to common carrier regulations "would be a profound mistake with
harmful and lasting consequences for consumers and our economy."

Some have advised the FCC that it might need to establish clearer authority to
uphold network neutrality regulations by tying it to the telecommunications
regulation under Title II of the Communications Act rather than regulate it
under the lighter regime of information services, as the commission chose to

But the ISPs said that there were already "ongoing, productive
efforts" to reach a consensus on how best to achieve the shared goal of an
open Internet.

Pulling no punches, Verizon, Time Warner, AT&T, Qwest, the National Cable
& Telecommunications Association and the wireless and phone company trade
associations said that "at minimum" such regulatory reclassification
would "plunge" the industry into "years of litigation and
regulatory chaos." They didn't even get around to saying how much worse
the "maximum" would be.

But they did suggest that reclassification could threaten the billions in
investment that would be needed to achieve the government'sgoal of 100 MBps broadband speeds to 100 million households by 2020. They
also say that a push by Free Press and Public Knowledge for invoking Title II,
if necessary, would be eventually overturned in court, but only after years of
"industry-destabilizing" uncertainty.

Calling it a "misguided regulatory overreach," they said the FCC
should "keep this Pandora's Box of Title II Classification nailed

"We'll defer comment on reclassification until the D.C. Circuit decides
our challenge to the actions of the previous FCC on due process grounds,"
said Comcast spokesperson Sena Fitzmaurice.

A group of net neutrality rule supporters, including Consumers Union, Media
Access Project and Public Knowledge, had advised the FCC to assert its
authority for proposed new network neutrality rules by relying on both Title I
authority to regulate information services and Title II authority to regulate
telecommunications services.

In comments to the FCC in its rulemaking codifying and expanding of its Internet
Policy Statement, one of thousands flooding the commission, the groups,
collectively calling themselves the Public Interest Commenters (PIC),
said that they believed the rules were sustainable under the Title I authority
the FCC applied to cable modem and DSL
service in 2005, but suggested it might be better to tie the rules to both.

Under Title I, ISP's are not subject to the
mandatory access provisions of Title II regs that apply to traditional phone
services. But the FCC has posited the authority to police Internet openness
based on ancillary authority tied to its general Communications Act powers, an
argument it made to a D.C. federal court in the BitTorrent case last month
(Title I includes powers "reasonably ancillary to the effective performance
of [its] various responsibilities" to regulate wired and wireless
communications). But the judges suggested the commission needed to find a more
specific statutory hook for its authority over the Internet.

Instead of relying on that general ancillary authority, the groups suggest, the
FCC should tie that authority to Title II through the transmissionelement of Internet delivery--the pipes--rather than the content that flowsthrough it.