Comcast, the only US broadband provider legally required to adhere to the original 2010 Open Internet rules, had nothing shockingly new to say in its official filing with the FCC. The nation's largest cable broadband provider said it supports the FCC's attempts to keep the Internet free and open. And it restated that it feels competition in the broadband market has been protecting consumers' access to the Internet to date.
But the company also emphasized two key issues it has harped on previously when discussing the Net neutrality debate. First, it says in its filing, the FCC should not reclassify broadband as a utility in order to protect the free and open Internet. And it argues that it doesn't believe that commercial interconnection deals, such as the arrangement it has with streaming video provider Netflix, should be addressed as part of the new rules.
Still, the company did offer a suggestion to the FCC about how the agency could allow broadband providers to experiment with prioritized services, while ensuring consumers are protected. And it suggests the FCC re-examine the rationale for treating wireless and wireline broadband networks differently, as the 2010 rules had done.
Comcast's suggestions come as hundreds of thousands of comments flood the FCC on a proposal designed to reinstate Open Internet rules. The proposal has been open for comment since May 15. The FCC had adopted rules in 2010, but those rules were thrown out by a federal appeals court in January. While the court mostly agreed with the FCC in terms of its authority to regulate the Internet, it didn't like the legal argument the agency used to justify its rules. So it told the FCC to go back to the drawing board and redraft new rules using a different legal argument.
Consumer advocates and some Internet companies have argued the only way to ensure that a new set of rules will stand up in future court challenges is to take the bold step of reclassifying broadband services under the law. These folks argue that broadband must be treated as a utility, like the electrical grid or the old telephone network. They believe only by reclassifying broadband as a so-called Title II common carrier service can the FCC offer rock-solid protection for Internet users and entrepreneurs.
But Comcast and other broadband providers view this as a "nuclear" option that they claim will destroy investment in the Internet. Instead, they argue the appeals court gave the FCC authority to do what it must to protect the Internet under Section 706 of the 1996 Telecommunications Act.
Title II is unnecessary, given the broad scope of authority laid out by the DC Circuit under section 706;
Title II poses significant legal risks thereby ensuring that any open Internet rules adopted pursuant to such a reclassification would be subject to years of additional litigation;
Title II has proved to be a failure in regulation that has stifled investment and innovation (think POTS; highways; and utilities); and
reclassification of broadband under Title II will create a huge cloud of uncertainty over the entire broadband industry, thereby retarding investment and innovation.
Comcast also argued that in spite of pleas from companies such as Netflix, the FCC should not consider commercial arrangements between so-called edge providers and broadband providers in its new rules.
Netflix argued in its own FCC filing that these interconnection deals, which dictate how content providers connect to broadband providers in order to deliver their traffic, should be regulated and addressed in the FCC's current Net neutrality rules.
But Comcast and other broadband companies say this is a separate issue. In the past, FCC Chairman Tom Wheeler has stated he agrees that these deals should not be considered part of the Net neutrality rules. But recently the chairman has asked Netflix and other content providers, as well as Internet service providers, to submit details of their commercial arrangements.
Suggestions for the FCC
Comcast veered from its two main areas of concern and also offered suggestions to the FCC on how to handle so-called paid priority services and wireless broadband services.
The new proposal, which Comcast and others have been commenting on, has been controversial in large part due to the fact that it could leave open the possibility of so-called fast lanes for priority traffic. While consumer advocates and Internet companies, such as Netflix, Amazon, and Google, have argued against allowing such paid prioritization, Comcast and other broadband providers say the FCC shouldn't ban them outright.
Instead, Comcast argues in the filing that banning these types of deals is the wrong move. Not only could certain arrangements be proposed that actually benefit consumers and entrepreneurs, but an outright ban would likely invite legal challenges.
Instead, it proposes the FCC draft rules requiring broadband providers seeking to offer a paid priority service to "bear the burden of showing that the arrangement is commercially reasonable and fair to consumers and edge providers."
Comcast also challenged the FCC to re-examine how the new rules will treat broadband services that are delivered over wireless networks versus wireline networks. Specifically, it urged the FCC to "carefully examine whether the regulatory restrictions applied in 2010 between fixed and mobile broadband services continue to be justified or need to be updated in some manner."
The company went on to say that at the very least the FCC should treat licensed wireless broadband services the same as it treats similar broadband services that use Wi-Fi. In the 2010 Open Internet rules, wireline services had to adhere to stricter standards than wireless services.
For instance, wireline providers were strictly prohibited from blocking any sites or applications, but wireless providers could block applications and services if they felt those services interfered with the performance of the network. The only caveat was that they could not block traffic that competed directly with their own services.
It's not surprising that Comcast, which has been building the nation's largest public Wi-Fi network, would ask the FCC to ensure that Wi-Fi get the same favorable treatment as wireless services that use licensed spectrum. And its suggestion could help open the debate for treating all Internet services, regardless of how they're delivered, the same.
The deadline for comments on the FCC's proposed rules was Tuesday, but a huge surge in submissions crashed the agency's website. The FCC has now extended the deadline to Friday.