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ETI paper on reclassification of broadband Internet access to be published in December 2010 Federal Communications Law Journal
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As the debate over net neutrality and reclassification of broadband Internet access to Title II common carrier status heats up, ETI's Lee Selwyn and Helen Golding have weighed in on the discussion with a new article reviewing the factual and legal bases for a far more expansive approach to reclassification than the limited proposal put forth earlier this year by the FCC. The paper is being published in the December 2010 issue of the Federal Communications Law Journal.
In their article, "Revisiting the Regulatory Status of Broadband Internet Access: A Policy Framework for Net Neutrality and an Open Competitive Internet," Selwyn and Golding explore how a decade of broadband access deregulation has landed the FCC at a legal dead-end. After the DC Circuit's Comcast decision last April, the Commission now finds itself unable to enforce its "net neutrality" goals. To reassert its jurisdiction over "net neutrality," the FCC proposes to reclassify broadband Internet access as a Title II "telecommunications service" while continuing to forbear from most other facets of common carrier regulation.
As the authors explain, the FCC’s current dilemma results from (1) an unfortunate combination of unverified predictive judgments associating deregulation with investment; (2) an overly optimistic assessments of competition in the consumer broadband market; (3) the abandonment of the “bright line” between transmission and content; and (4) the elimination of unbundling requirements for broadband services. The FCC needs now to revisit – and revise – the factual, legal and policy judgments that have brought it to the current situation.
Reclassification is factually and legally the proper regulatory course, but its benefits would be seriously undermined by broad presumptive forbearance. Last mile broadband Internet access offered by incumbent local exchange carriers and cable companies is unambiguously pure transmission, i.e., telecommunications service. Facilities-based Internet access providers should be required to offer downstream rivals equivalent last-mile broadband access as a wholesale telecommunications service on a nondiscriminatory basis; under this framework, telcos and cable companies could continue offering broadband bundled with content and applications as competitive, non-regulated information services. Given the demonstrated ability of facilities-based carriers to use their control of bottleneck last mile access to discriminate against downstream rivals, there can be no justification for the FCC to forbear from applying most Title II obligations to broadband access providers. Combining these two threads, the authors conclude that by restoring competitors’ ability to purchase “basic” broadband access as a platform for their own retail Internet access entry, the FCC has the opportunity to create more competition, with less explicit net neutrality regulation, than by reclassification alone.
The Selwyn-Golding article appears in Vol. 63, No. 1 of the FCLJ, at pp. 91-140.
For more information, contact Colin B. Weir at cweir@econtech.com
Read the rest of Views and News, November 2010.
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About ETI. Founded in 1972, Economics and Technology, Inc. is a leading research and consulting firm specializing in telecommunications regulation and policy, litigation support, taxation, service procurement, and negotiation. ETI serves a wide range of telecom industry stakeholders in the US and abroad, including telecommunications carriers, attorneys and their clients, consumer advocates, state and local governments, regulatory agencies, and large corporate, institutional and government purchasers of telecom services. |
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