More Than Million Net Neutrality Comments Include No Game Changers, But Set Up The Debate Ahead

Many of the comments were aimed at the FCC’s Democratic majority to get them to try to convince Chairman Tom Wheeler to continue relying on Section 706, or from the perspective of Title II advocates, to abandon the “commercial reasonableness” standard set out in the NPRM and reclassify broadband as a telecommunications service, said those involved in the debate. Wheeler would need Democrats Mignon Clyburn and Jessica Rosenworcel to provide two of the three votes needed to pass anything. In order to continue with a strategy based on Section 706, some believe Wheeler would need to give Clyburn and Rosenworcel the political cover of appearing to take strong action. Republicans Mike O'Rielly and Ajit Pai aren’t considered major factors because both dissented to the NPRM and are unlikely to support any rules, those on both sides said.

The comments filed at the FCC are only one aspect of the debate, with Congress weighing in and high-profile matters like Comcast/Time Warner Cable and AT&T/DirecTV possibly playing a role before all is said and done, said a communications attorney whose client opposes the use of Title II. Upcoming consideration of those mergers gives the FCC an opportunity to extract strong net neutrality commitments from companies that would represent more than half of the nation’s broadband market, the attorney said. That could satisfy “the pro-net neutrality crew” and may give commissioners “more leeway to go the 706 route,” the attorney said. “Wheeler may drag out this proceeding until after the FCC either blocks one of the pending mergers or heavily conditions them,” agreed TechFreedom President Berin Szoka, an opponent of using Title II. “That way, Wheeler could soften the blow of being seen as selling out on net neutrality (however unfair that might be) by seeming to take a tough stand on merger conditions,” he said in an email.

Some argue the commission displayed its preference not to use common carrier regulations when it relied on 706 in the 2010 order, and in the NPRM. Clyburn and Rosenworcel realize the use of Title II could hurt broadband deployment, which worries unserved minority communities (CD July 22 p6), said “I don’t think they're serious about applying Title II. I think they're just under tremendous political pressure to be seen as finally giving Title II a full hearing,” Szoka said. “I believe the Clyburn Office was already skeptical of the 706 approach,” said one telecom source whose organization opposes using 706. Reading comments filed warning 706 would be thrown out by the courts “supports that skepticism,” the source said.

The comments focusing on the Title II debate “tended to be a retread of the issues that have already been discussed in full,” said the communication attorney opposed to Title II. “There’s not much new there.” To Public Knowledge Senior Vice President Harold Feld, though, the focus on Title II illustrates “how the dialog has shifted a great deal since 2010,” when the FCC passed the Open Internet rules thrown out by the U.S. Court of Appeals for the D.C. Circuit. “In 2010, we had a massive push by carriers against even having rules. This reflects the reality that Net Neutrality is no longer a geek issue or a ‘Netroots’ issue or a ‘Tea Party’ issue. Net neutrality has gone mainstream,” Feld said in an e-mail. “The center is no longer between no rules and Title II. There’s a lot of support for Title II and a lot of different flavors of Title II being proposed. This is not simply everyone retreating into their respective corners and reiterating the same talking points (although obviously there is some of that as well).”

The impact of the large number of comments -- 1.06 million -- is debatable (CD July 18 p1). Title II proponents said comments filed by Internet-based companies like Etsy were significant. “The software people are incredibly engaged,” said Benton Foundation Director-Policy Amina Fazlullah. “It’s not all just individuals expressing concern. ... Etsy serves very small mom and pop shops” who wouldn’t have the resources to be in protracted negotiations with ISPs or appeals before the FCC. Etsy was one of a number of relatively small companies that met directly with Wheeler July 15 urging reclassification, according to an ex parte report (CD July 21 p7).

Hybrid Proposals

The middle ground proposals that call for some use of Title II, even if not adopted, could help by “convincing the chairman he not only needs to reevaluate his original 706 proposal, but consider some of the alternatives that don’t go as far but would do a lot more to protect consumers than the ‘commercially reasonable’ standard,” said a telecom source supportive of a middle ground path. Mozilla’s comments were intended to “explain to the chairman all of the concerns around 706,” and through offering an alternative, make the point he could take another path, Mozilla Senior Policy Engineer Chris Riley told us. Mozilla argues that applying regulations under Title II for only the ISP/edge provider relationship would avoid reclassifying all of broadband. It would not apply to the activities of edge providers but rather wall off the Internet, the company said in its comments in docket 14-28(http://bit.ly/1wWEIRp). It would also not encompass interconnection or peering practices, or impact content delivery networks.

Comptel’s proposal would avoid outright reclassification by requiring wholesale access to transmission through Title II but ban paid prioritization under 706 (http://bit.ly/UqgWka). That would address the “disappointing lack of competition in the wireline broadband market,” Comptel’s comments said. Allowing access on reasonable terms would open transmission and allow ISPs and edge providers to manage their services themselves, removing the risk of blocking or discrimination without full-scale recategorization, said Comptel general counsel Angie Kronenberg.

Comptel’s proposal is “bad policy,” said Doug Brake, Information Technology & Innovation Foundation (ITIF) telecommunications policy analyst. “It is not so much a compromise to find a solution on net neutrality but a transparent ask for wholesale access to local loops. Such a policy would only increase a superficial service-level competition and sap the incentive to innovate and invest in networks."

AT&T proposed an outright ban on paid prioritization under 706, as well as an alternate approach. Arguing that it does not ban or discriminate against edge providers, and does not plan to do so, the company proposed ISPs sign a voluntary agreement not to block or discriminate. Those not agreeing to the commitment would face FCC net neutrality regulations, and given that this would “trigger additional prophylactic regulations, AT&T believes that few, if any, of the leading ISPs would” not join the pledge, the filing said. The idea could ease concerns companies might challenge 706 in court by getting companies to simply agree to follow the rules, said one industry source opposed to using Title II. Neither option would be acceptable to Free Press, said policy director Matt Wood, because those not entering the voluntary agreement would be subject to rules under 706, which his organization does not believe will stand up in court.

Title II opponents also saw significance in comments filed last week by The Information Technology Industry Council opposing Title II and one analyst’s prediction that the council’s position puts the chances of common carrier status at below 50 percent. The Internet Association, which is smaller than ITIC and restricted to Internet-based companies, took no position on the Title II debate. “To us, this shows that even the Web companies see reclassification as an extreme measure that could have disastrous results for the Internet and their businesses,” said one industry source opposed to Title II. -- Kery Murakami (kmurakami@warren-news.com)