I don’t mean to appear lazy or simply cut and paste to see if folks remember something posted months ago but given the big vote at the FCC tomorrow on net neutrality, I wanted to share some thoughts that we at NTCA had shared this spring….the thoughts remain the same with a particular emphasis on the importance of interconnection and the ability to ensure that there are protections and a backstop for small carriers in an unfettered environment. As has been noted by many, what is the downside of having a referee on the field?
So I share again….
Sometimes in all of the complex legal back-and-forth and incredibly heated rhetoric about Title I or Title II, the practical issues that created the net neutrality debates in the first place get lost in the shuffle. But, throughout these debates, NTCA has focused specifically on the practical – regardless of the basis for any regulation, the primary practical concern for NTCA has been and still is what can happen in the absence of any rules or regulatory framework at all. Without basic “rules of the road” of some kind to guide how companies interact with one another in the communications marketplace, there’s the potential for chaos that will adversely affect rural consumers and smaller providers who need clarity and certainty to overcome the challenges of their markets.
As one close-to-home example, think about what would have happened if the FCC lacked authority to address concerns about call completion. When a segment of the industry decides it isn’t worth the time, effort, or cost to make sure calls reach rural America, that’s a huge public policy problem – no one disputes that. Now carry that over into a broadband environment where, say, a massive online video streaming service might decide in the future it’s too much trouble to deliver its data to selected rural markets. Or imagine a major backbone/transit provider decides it’s time to hike prices for smaller rural network providers to unreasonable levels because, again, they’re too small and too remote for the bother of interconnecting. If such incidents occur and there’s no “cop on the beat,” what happens? Who keeps rural America connected to the rest of the world? And while that risk may seem remote, no one would have thought just a decade ago that people would try to get away with failing to deliver telephone calls to rural America either . . .
So that’s where NTCA has taken a practical middle-ground view of things. What’s a potential “regulatory backstop” to make sure things don’t break – or that someone can step in to address them when they do? How do you adopt that kind of framework without getting into heavy-handed regulation? With our members having already operated under Title II for years, that offered at least a potential, familiar “regulatory backstop” to address concerns that may arise about cost recovery and reliable connectivity without having to write new rules from scratch. In effect, NTCA previously saw Title II an available means to a practical end – a way of securing greater regulatory certainty on issues of essential importance to rural consumers like interconnection and universal service, as well as a some backstop in the event of concerns arising in the future.
At the same time, we were in favor of a very different version of Title II-based rules than those that were ultimately imposed. The light-touch Title II “regulatory backstop” we supported was very different than the heavy-handed retail regulation-focused regime that we saw in the wake of the Open Internet Order. Instead of some much-needed very basic “rules of the road” and principles to make sure data flows seamlessly across networks of all kinds, we saw an aggressive regulatory platform that favored certain segments by applying one-sided interconnection rules and other burdensome requirements only to retail Internet Service Providers. This was not the Title II we were looking for.
Given the heavy-handed regulations that were issued based upon Title II and other obvious changes in policymaking circles, the time may have passed to hope for use of Title II in a productive way in this area. Nonetheless, NTCA still firmly believes that whatever comes next must ensure that important policy considerations like interconnection and universal service aren’t lost, discarded, or just confused irreparably in any unwinding of Title II. We continue to be focused on the practical goals and substantive outcomes of this debate – making sure that universal service is sustained and that there’s some regulatory backstop in case small rural providers and their customers are shut out or face the prospect of massive new and unreasonable costs in an online broadband world. As long the legal foundation that’s ultimately adopted is legally sustainable and restores much-needed regulatory certainty, the specific vehicle used to justify implementing such “rules of the road” and to achieve those policy goals is of secondary importance to the practical outcomes.