Clyburn Wants Net Neutrality Order With Something for Everybody

Though widely considered to be a likely supporter of the Communications Act Title II net neutrality approach FCC Chairman Tom Wheeler is expected to unveil later this week, Commissioner Mignon Clyburn said in an interview that she wants to make sure “everyone is able to point to something in the order that benefits them.” By that, Clyburn, who acknowledged she backed Title II in the 2010 net neutrality order, said she doesn’t want only the “well-heeled” to benefit, and wants the commission to maintain a regulatory backstop if needed. She also doesn't want to damage the continued deployment of broadband, Clyburn told us Friday.

Clyburn stopped short of saying how she’ll vote, saying she hasn’t seen the details of the proposal in a draft order. Clyburn signaled that mobile users of broadband should have the same level of protection as wireline users, saying many low-income people rely on mobile for Internet access. Clyburn also signaled a reluctance to commit to interim rules, saying it may not provide the appropriate “certainty” for Internet users. Clyburn, in a wide-ranging interview that also touched on the incentive auction (see 1501300058), also backed more Lifeline funding and inmate calling service reforms.

It was unclear what benefit broadband providers would be able to point to in an order reclassifying them under Title II. Broadband providers and CTIA didn't comment on her remarks Monday.

Meanwhile, splitting from others who have backed adding interconnection agreements to the net neutrality order, Netflix CEO Reed Hastings told Wheeler during a phone call Friday that the company would back an approach in which the agency would deal with interconnection on a case-by-case basis, according to an ex parte filing posted in docket 14-28 Monday. The agency has been leaning toward that approach, though others, including Comptel and Cogent, have been pushing for a clear prohibition on paid prioritization in interconnection agreements (see 1501270030). Fearing a case-by-case approach would take too long, Comptel and Cogent have backed a bill-and-keep policy. A Netflix official noted in an email to us Monday that “a complaint process would allow for precedent-setting rulings that would've helped” when the company accused Comcast and others of slowing traffic until Netflix paid fees. Neither Comptel nor Cogent commented Monday.

In the waning days before Thursday’s deadline for Wheeler to circulate a net neutrality order for it to be taken up at the Feb. 26 commission meeting, broadband officials pressed the agency not to include interconnection, according to ex parte filings also posted Monday. According to a filing, on Jan. 28 several senior Verizon executives told a group of agency officials, including General Counsel Jonathan Sallet, that the “inherently individualized [interconnection] arrangements have always been the product of commercial negotiations.” “The flexibility allowed by this approach has played a key role in the explosive growth of the Internet,” the filing said. Verizon in a letter to the commission Monday also urged the agency not to expand transparency rules in the upcoming order.

Comcast also urged the agency to exclude interconnection agreements. The issue is separate from net neutrality concerns, the company said in a letter Friday. The cable operator said interconnection agreements “are negotiated based on the amounts of traffic -- not the type, content, or source of traffic -- being delivered to each party’s network by the other.” Unlike other net neutrality rules advertised as protecting residential customers, Comcast said that “the exchange of Internet traffic invariably entails arrangements between sophisticated commercial parties with very large amounts of traffic and their own network facilities -- parties that directly connect only when they perceive mutual value in doing so.”

Given the decision to reclassify broadband “seems driven by political considerations,” there’s little hope the agency will alter its Title II path, AT&T Vice President-Federal Regulatory Hank Hultquist said in a blog post Monday. Still, he wrote, a letter the company filed Monday argues reclassification “is a road to nowhere that will not provide the FCC authority to adopt open Internet rules or even permit the imposition of common carrier-type net neutrality regulations pursuant to some other source of authority.” A second letter by the company argues that determining a service is offered on a common-carrier basis requires a finding of market power. The FCC "has engaged in no analysis of market power on a geographic market basis. Accordingly, this option is simply not available to the FCC,” the post said.

The agency shouldn't forbear from Section 254, which requires telecom providers to contribute to universal service (see 1501120039), Levine Blaszak’s Andrew Brown and Colleen Boothby, representing the Ad Hoc Telecommunications Users Committee, told Wireline Deputy Bureau Chief Carol Mattey and other agency officials, according to an ex parte filing. The committee represents large business users of telecom and technology services, Brown told us. Forbearing from the section would “undermine” the commission’s ability to reform USF contributions by including broadband, “discriminating unreasonably” against customers of other services that pay into the fund, the committee said. Because fund costs are increasing while the revenue base is shrinking, the USF contribution factor is expected to increase from 16.9 percent this year to 20.9 percent in Q1 2016, the group said. Requiring broadband to contribute to the USF for the first time “would result in new fees on broadband customers that would undermine the efforts being made by cable operators and the Commission to promote broadband adoption,” Steven Morris, NCTA associate general counsel, told Mattey and Wireline Deputy Bureau Chief Matthew DelNero Friday, according to an ex parte filing.

On reforming Lifeline, Clyburn again backed revamping the program, including removing providers from making eligibility decisions (see 1411120026). She believes modernizing Lifeline could provide more choice and increase the dignity of those using the program, while also reducing incentives for fraud.

On another issue Clyburn has pushed, inmate calling services, she said the debate has shifted to the point at which there's general agreement among providers and advocates for inmates that prices are too high, though there’s disagreement on what to do about rates, ancillary fees and commissions providers pay to prisons and jails. Clyburn said that what’s important is the entire amount inmates and their families pay. A low rate cap doesn’t do much good, she said, if ancillary fees are 20 cents a minute. Clyburn also stressed the need for the commission to deal with intrastate rates, noting most inmate calls are local.