The U.S. Chamber of Commerce (“Chamber”) respectfully submits these comments in response to the notice of proposed rulemaking (“NPRM”) in the above-titled proceeding. The Chamber vigorously opposes the Federal Communication Commission’s (“FCC” or “Commission”) proposal to impose onerous, utility-style regulation on broadband providers by reclassifying broadband as a “telecommunications service” under Title II of the Communications Act.
Six years ago this month, the FCC voted to repeal its short-lived experiment in treating broadband providers like common carriers under the same regulatory framework that used to apply to monopoly telephone networks. At the time, pro-Title II advocates told the public that reversing Title II classification would end the Internet as we know it, resulting in reduced speeds, higher prices, and Internet service providers (“ISPs”) deciding what content consumers were allowed to see. But as has become apparent to any reasonable observer, none of these dire predictions came to pass. To the contrary, broadband service is faster and cheaper and consumers have more options than ever before. Our networks helped keep the country connected during the COVID-19 pandemic at a time when millions of Americans worked from home and made significant use of the Internet for telehealth, e-learning, online gaming, and video streaming.
Nonetheless, the FCC proposes to double down on failed regulatory strategies from the past. While the FCC cannot identify new evidence of open internet violations to support sweeping prescriptive regulation, we are now told that Title II is needed for a host of new, unrelated policy reasons—from national security to privacy to cybersecurity to public safety. 2 But the Commission does not come close to adequately explaining how classifying broadband as a Title II service would advance these goals, let alone be superior to other more targeted approaches under its existing authority.
Title II reclassification will accomplish one thing—increasing the FCC’s control over the Internet. But this expansive assertion of authority is both unlawful and unwise. The Communications Act does not authorize Title II classification of broadband, and in any event, the Supreme Court’s major questions doctrine prohibits it. In recent cases, the Supreme Court has treated skeptically broad and novel assertions of agency authority over major sectors of the economy absent clear Congressional authorization. And the Court has cited approvingly Justice Kavanaugh’s seminal opinion from his time on the D.C. Circuit that addressed the precise issue raised by the NPRM and concluded that Congress did not clearly authorize Title II classification and the FCC exceeded its authority in deciding this major question itself.
The Commission should spare itself, the courts, and the public the time and expense involved with retreading Title II classification, when any new Title II order is destined to be vacated by the Supreme Court. In the meantime, as was true in 2015, Title II would depress innovation and investment and impose significant costs on providers—particularly new entrants and small or rural providers that lack resources to absorb significant regulatory uncertainty. The FCC should instead stay the current course and continue to treat broadband as a Title I “information service.” Rather than relitigate Title II, the FCC should focus on pro-competitive, pro-growth policies that will help America continue to lead in the global race for next-generation connectivity.
Full comments can be found here.
