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NCTA Asks FCC Not to Regulate Provision of Internet Access Services

The National Cable & Telecommunications Association has
asked the FCC not to regulate the provision of Internet access services,
period, echoing its call for "vigilant restraint."

NCTA says that classifying broadband as a Title II
telecommunications service is "unsustainable" as a matter of either law or
policy, that the FCC should not expand its openness principles to include
transparency or nondiscrimination, saying that would be costly and
counterproductive, and that any rules it does apply should be applied to
wireless ISPs and application providers.

That came in reply comments late Monday (April 26) on the FCC's
proposed network neutrality rulemaking, just one of a parade of comments that
were filed all day, including from the wireless carriers saying net neutrality
rules should not apply to them, and public advocacy groups saying that the FCC
should reclassify broadband for the sake of keeping a cop on the network
management beat.

The FCC delayed its comment deadline to Monday (April 26)
from earlier in the month so that folks could weigh in on the implications of
the BitTorrent decision, which said the FCC had not justified its network management
ruling against Comcast. That has prompted calls for the commission to classify
broadband as a Title II telecommunications service subject to more stringent
regulation that its current Title I information service classification.

NCTA's response was short and sweet. "The Title II path
urged by the proponents of Internet regulation would lead the Commission into
an untenable regulatory and policy thicket that would only frustrate and stifle
the innovation, investment and rapid growth that have characterized the
Internet since the arrival of broadband service," said NCTA.

It spent much more space (six-and-a-half pages vs. two
paragraphs) pointing to what it said were the First Amendment implications of
network neutrality regulations.

NCTA argues that net neutrality proponents can't both insist
the FCC "control decisions by Internet service providers," and at the
he same time "maintain that Internet service providers do not make
decisions about speech that they deliver."

"If [the FCC] wishes to dictate the speech that
Internet service providers may offer," said the cable operators,
"then it must accept the First Amendment scrutiny that goes with
government efforts to control a private marketplace for speech. And, that is a
scrutiny that the proposed rules cannot pass."

FCC Chairman Julius Genachowski has said that he thinks the
FCC has the authority to implement the broadband plan and protect Internet
openness, but he has not elaborated beyond saying FCC lawyers are hard at work
making sure whatever the commission does has a solid legal foundation.