Comcast agrees with the Commission that “[t]he Internet is America's most important platform for economic growth, innovation, competition, free expression, and broadband investment and deployment.”5 These benefits are closely tied to the Internet's openness, which enables a “virtuous circle” of innovation, demand for Internet-based content and applications, and deployment of broadband infrastructure. Thus, just as Comcast recognized the importance of the 2010 Open Internet Order and was one of its strongest supporters, Comcast again supports the Commission's proposal to adopt new, enforceable rules in furtherance of its goal of maintaining an open Internet. In designing these rules, it is essential that the Commission strike an appropriate balance between establishing effective oversight and promoting investment in broadband infrastructure.
To achieve this balance, the Commission should follow the D.C. Circuit's guidance and base its new rules on Section 706 of the Telecommunications Act of 1996. This provision, as interpreted by the court, provides the Commission with ample authority to fulfill its objectives in this proceeding. Although the court vacated the Commission's 2010 no-blocking and nondiscrimination rules because they improperly imposed common carrier regulation on information service providers, it also cleared the way for the Commission to adopt sensible and legally sound open Internet rules that would not run afoul of this prohibition. This marks the first time that an appellate court has recognized clear legal authority for the Commission to adopt open Internet rules.
Relying on this authority, the Commission should reaffirm the importance of its transparency framework, reinstate a “no blocking” rule with a revised legal rationale, and establish a “commercial reasonableness” standard to govern direct commercial relationships between broadband providers and edge providers relating to the transmission of Internet traffic over broadband Internet access service. Following this path will enable the Commission to build confidence across the Internet ecosystem and strengthen the “virtuous circle” that has produced abundant benefits for consumers, businesses, and the economy as a whole.
Furthermore, the Commission should adopt its tentative conclusions to limit the scope of the rules to the provision of broadband Internet access services. As the Commission and the Open Internet Advisory Committee (“OIAC”) have recognized, allowing specialized services to develop without the constraints of open Internet rules has the potential to yield significant benefits for consumers and competition. And, to the extent the Commission seeks to evaluate the marketplace for Internet backbone traffic exchange, it should do so separate and apart from this proceeding, as the issues presented are distinct.
At the same time, the Commission should ensure that its open Internet rules properly address services that do involve the provision of broadband Internet access to end users, and to that end, should carefully examine whether the regulatory distinctions adopted in 2010 between fixed and mobile broadband services continue to be justified or need to be updated in some manner. However the Commission ultimately decides to treat licensed mobile broadband services, it should apply the same treatment to public Wi-Fi services that offer comparable capabilities. Treating these two categories of wireless services differently would be irrational as a policy matter and unworkable as a practical matter in today's marketplace.
In all events, the Commission should not recla**ify broadband Internet access service, or any component thereof, as a Title II telecommunications service. Doing so is unnecessary because Section 706 provides the Commission with sufficient authority to fulfill its objectives. It also would be unwise in that it would stifle capital investment and dynamic innovation at the very time the Commission is seeking to encourage the deployment of higher speed services. And it would present needless risk as a legal matter, resulting in years of protracted litigation and uncertainty. If the Commission's intention is to protect and promote the development of the open Internet, and to do so promptly, it should keep faith with the cla**ification decision it made in 2002, successfully defended before the Supreme Court, and applied further in 2005, 2006, and 2007, especially now that the D.C. Circuit has recognized the Commission's authority under Section 706.