Operators, Legislators, Regulators Battle Over Title II

The FCC appears to be headed toward a showdown with cable companies—and some members of Congress—over Title II regulations.

Those Internet service providers aren’t being especially subtle about their preferences, given how hard they’re now pushing back against FCC chairman Tom Wheeler’s plan to vote on new network neutrality rules in February, which he signaled at last week’s Consumer Electronics Show.

Wheeler did not come out and say definitively that he would propose reclassifying ISPs under some Title II common carrier regulations as a way to prevent online blocking or discrimination, but he stopped just short of doing so, and noted that he had an “a-ha” moment when he considered how much wireless companies had flourished over the past two decades under Title II.

President Obama has called on the FCC to impose Title II, calling it a way to prevent blocking access to the “best” broadband. Universal access to those premium broadband signals—a.k.a., at the highest speeds—is at the top of Obama’s to-do list as he builds his last-term legacy.

The Need for Speed

The need for high-speed broadband will be a theme of his State of the Union address Jan. 20. In addition, Wheeler signaled two weeks ago that the FCC wanted to change the definition of high-speed from 4 Mbps to 25 Mbps, which is what Wheeler has suggested will be needed to access the entertainment, education and services of the Internet of Everything.

ISPs will help deliver all those things, but don’t want to do so under the Title II common carrier regime and see the tide turning toward reclassification.

Hoping to delay that vote, the major cable TV/Internet associations have told Wheeler that a vote in February would not only be premature, but likely illegal.

In a joint letter, the National Cable & Telecommunications Association, American Cable Association, and the Wireless Internet Service Providers’ Association said that the FCC did not sufficiently gauge the impact of Title II reclassification on smaller ISPs, as the law requires.

In a separate letter, ACA officials said that if the FCC does go to Title II, it should forbear all those regulations when it comes to the smaller operators it represents.

Under Review

A spokesperson for the chairman declined to comment on the cable operators’ charge of failing to fulfill the acts’ requirements, saying only that, “we have received the letter and are reviewing it.”

Over on the Hill, Republican lawmakers—the third prong in this Mexican standoff—opened their counteroffensive against Title II.

Sen. John Thune (R-S.D.) and Rep. Fred Upton (R-Mich.), the chairs of the Senate Commerce Committee and House Energy & Commerce Committee, respectively, said they are working on legislation that would protect against online discrimination and blocking and even paid prioritization without reclassifying Internet access under Title II.

Cable operators have argued they can live with some form of all of those rules, but not under the Title II common carrier regs they say could be disastrous for innovation and investment. The White House is backing Title II and does not buy those arguments, according to an official who spoke to reporters Tuesday about the president’s high-speed broadband initiatives.

Hearings in the House Communications Subcommittee and Thune’s Commerce Committee have been scheduled for Jan. 21 to talk about the issue and the draft legislation. Thune said the hearing would feature nongovernment witnesses talking about the FCC’s authority and Congress’ options for updating laws.

The draft as described still provides a chance for user-directed prioritization, which is one option for paid prioritization offered up by one ISP.

In a co-bylined piece for Reuters, Thune and Upton said they were working with both sides of the aisle on compromise rules, but any Democrats signing on would be going up against the president.

Separately, Rep. Bob Latta (R-Ohio), vice chairman of the House Communications Subcommittee and no fan of any regulation, has reintroduced a bill that would block any effort by the FCC to reclassify Internet access under Title II common carrier regulations.

Current congressional actions could mirror future standoffs between the Hill and the Obama administration. The president has come out strongly for Title II and urged the FCC to follow his lead. Even if the Republican-controlled House and Senate passed a Title II blocking bill, the president would almost certainly veto it, and even with some Democrats skeptical of Title II, it is unlikely to be overturned.


The State of the Union hinges on the state of broadband and the Internet—that, at least, appeared to be the message from the president last week.

President Obama previewed his Jan. 20 address to the nation with a road show—at the Federal Trade Commission and in Iowa—talking up the need for stronger online privacy protections and high-speed broadband. He also gave backing to FCC chairman Tom Wheeler’s support of preempting state laws that limit municipal broadband build-outs as Obama shapes a legacy in his last term, one clearly tied to deployment of the Internet.

The FCC’s push for higher broadband speeds in both the E-rate revamp and lifeline subsidies, as well as the latest Sec. 706 report, looks more and more like spadework for the administration’s push for ubiquitous, affordable broadband.

Add in Wheeler’s acknowledgement that he and the president are pretty much on the same page when it comes to the need for Title II regulations—at the very least for regs that prevent online discrimination by ISPs against those they perceive are in need of regulatory restraints—and cable operators are facing a tough swim against a tide of new rules and executive actions.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.