• by Wendy Davis  @wendyndavis, August 13, 2010

In a new round of written comments, advocacy groups argue that the Federal Communications Commission must reclassify Internet access as a telecommunications service in order to carry out its ambitious broadband plan.

"For rural Americans who currently lack access to broadband, for low-income Americans who can't afford it, for Silicon Valley entrepreneurs developing the next killer application, and for middle class Americans who just want to know how much they're paying for broadband and what they're getting for their money, implementation of these policies can't come fast enough," advocacy group Free Press argues in comments filed this week.

Chairman Julius Genachowski recently proposed that the FCC regulate broadband access under Title 2 of the Telecommunications Act, but refrain from applying many of that section's requirements to providers. Characterizing the plan as a "third way" between heavy regulation and none at all, Genachowski proposed the initiative after a federal appeals court said the agency lacked authority to sanction Comcast for throttling traffic because broadband is classified as an information service.

The plan also is seen as the first step towards creating neutrality regulations, because reclassification would allow the FCC to impose some of the same common carrier rules that govern telephone companies on broadband providers.

Telecoms and cable companies generally oppose the third-way approach. "The record provides incontrovertible evidence that the 'third way' would be a road to ruin," AT&T argued in comments filed this week. "Reclassification would, for the first time ever, saddle the broadband industry with regulation originally developed for telephone monopolists seventy-five years ago."

The reform group Public Knowledge specifically addressed that argument in its comments, which state that common carrier principles "are much older than the 1930s."

Public Knowledge adds: "For hundreds of years, certain professions -- particularly those that involve a party taking charge of the goods, messages, or safety of another -- have been recognized as having a 'public calling.'

Common carrier rules, the group says, aren't geared toward any specific technology but toward endeavors that "involve a party taking charge of the goods, messages, or safety of another," like operating a railroad or transmitting telegraphs. "Like due process, trespass, and the right to habeas corpus, common carriage is an old legal principle that is vital today," Public Knowledge writes.

AT&T and other broadband providers also argue that treating Internet access as a Title 2 service would discourage investment in networks. "A wide range of analysts and stakeholders have expressed deep concern about the investment-depressing consequences of any reclassification decision," AT&T argues, citing material like a Bernstein Research report asserting that reclassification "would broadly throw into question capital investment plans for all broadband carriers, potentially for years."

The Open Internet Coalition -- a group that includes Amazon, eBay and Google -- dispute that prediction. "Recent data strongly indicates that proscriptions on discrimination would not deter internet service provider investment," the group argues. "Moreover, the Commission should consider the investment incentives of the entire broadband ecosystem ... Without assurances that the Commission has oversight over last-mile, bottleneck broadband access facilities, companies producing innovative Internet applications, content and services lack the certainty needed to fully invest in developing such applications, content and services."