Carrier AT&T has filed two notices with the Federal Communications Commission that argue against the planned introduction of a proposal by FCC Chair Tom Wheeler to reclassify broadband and mobile data providers as “common carriers” under Title II. The proposal, yet to be formally introduced, would get rid of paid-prioritization deals, ensure net neutrality, cease blocking and throttling users without cause, and require more transparency in dealings by ISPs.
Most congressional Republicans and, unsurprisingly, the major broadband and cellular data carriers in the US are opposed to the concept, even though a nearly-identical move to Title II regulation was made for mobile telephone service in the early 1990s with no ill effects on the industry whatsoever — a fact the same providers admit to privately. AT&T in its notices makes clear it plans to sue the FCC in court over any attempt at Title II regulation, echoing a similar threat by Verizon.
The crux of AT&T’s argument to the FCC rests on two different premises: that it is both a telecommunications provider (which can be regulated under Title II) and an “information service” provider, which isn’t covered. AT&T argues in its filing that the proposal about to be filed by Wheeler would classify the company as solely a telecommunications provider under the Title II terminology, thus nullifying existing deals and policies over paid prioritization, blocking users and throttling users.
The company says that very tools it uses to do those things make it an information service. “The capabilities that allow prioritization… involve the use of an ISP’s ‘computing functionality’ to provide ‘the capability of getting, processing, and manipulating information,'” said AT&T General Attorney Christopher Heimann. This means that these specific abilities to hinder and manipulate traffic cannot be “understood as a separate telecommunications service subject to Title II. [The] plain meaning of the statutory definition mandates the result that any offering including ISP functionalities-and thus, as discussed above, any offering that includes the ability to prioritize or block content-necessarily is an information service.”
This argument may well be shot down by the court on the basis that the carrier is “cherry-picking” which aspects of its service it wants to have regulated and which ones it doesn’t. The firm’s own posts to its blog on the topic of Title II regulation of its mobile phone service show that regulation has been incredibly successful in growing the industry.
The second complaint lodged by AT&T is that the FCC is rushing the proposal, despite having spent at least two years on the matter. “Under longstanding precedent, the FCC must make particularized findings with respect to the offerings of individual carriers in order for it to find that either they are operating as common carriers, or should be required to operate as common carriers,” Hiemann wrote. “The FCC has not engaged in the kind of detailed analysis that would be needed to assess the offerings of every ISP that would be subject to its rules.”
The carrier says that most other providers, including itself, have carrier-to-carrier cooperation agreements and other such services that defy the suggestion that they are simply “common carriers” that just pass along the existing Internet to customers. “And in some markets, such as for peering and interconnection,” Hiemann wrote, “the record is in fact quite clear that ISPs do not operate as common carriers, and expressly retain the right to refuse to provide service. These services are unique carrier-to-carrier arrangements commercially negotiated in a robustly competitive market, and it would strain all logic to find that they instead are offered indiscriminately to the public for a fee, the core requirement of common carriage.”
“The FCC cannot mandate that a service be offered on a common carrier basis without, at a minimum, a finding that a particular provider has market power in a particular geographic market. Needless to say 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,” he concluded.
The argument may have a weak point, however. AT&T cites the ruling that started the whole net neutrality debate — Verizon’s win over the FCC in court arguing over a different enforcement rule — as its basis for claiming that it can’t be a common carrier. However, the court in that instance ruled only that under section 705 of the Telecommunications Act (ironically a far lighter regulatory hand than is now being proposed), the FCC had tried to impose per se common carrier restrictions without first reclassifying them as common carriers, which is why Verizon won the case.
The FCC will likely argue that it is following the judge’s instruction, and can demonstrate a need for the public good to require stronger regulation — to ensure net neutrality, among other reasons. The proposal to be introduced this week roughly follows President Obama’s four-point call for Title II regulation. In short, the President demanded that net neutrality be ensured, that paid prioritization be illegal (and existing deals nullified), that carriers be more transparent in their dealings, and that throttling or blocking users without proof of illegal activity be stopped.
