By Shirley Bloomfield
It’s big news in the telecom policy world (and even beyond) that the FCC is poised to vote this week on an order that would, if approved, fundamentally change the rules that govern broadband. Taking a step back, it’s interesting to see where we started and where we are now on the eve of this vote.
First, where we started—when the federal court overruled the FCC’s net neutrality rules, we knew that this debate would consume much (all?) of the oxygen in the telecom policy room. But we also knew this debate could present opportunities to seek resolution (or at least make progress) on some key issues of importance to rural consumers. So our policy committees got right to work developing the positions that have guided our association’s advocacy since then on behalf of our nearly 900 rural telco members, and our members themselves have also been very active in pushing for common-sense changes as part of this broad-ranging debate.
For example, since early last year, we’ve been highlighting over and over again that seamless interconnection is an essential part of making sure consumers stay connected and networks work. (Of course, we’ve actually been making the case for “rules of the road” to govern interconnection of broadband-capable, IP-enabled networks since at least late 2012, and stakeholders such as COMPTEL to NARUC have been making the same case too.) We also saw that this net neutrality debate, with broadband becoming a telecommunications service, might bring us closer than ever to the kind of common-sense universal service contributions reform that we’ve been pursuing for years.
So coming to where we are today—will either of these points get resolved in this week’s order? Likely not, but we’re hopeful we’ll see some progress too. From what we can tell, it looks like the FCC is focused for now just on last-mile ISPs and how they interconnect with others. Meanwhile, on the contributions front, the FCC seems inclined to let the Federal-State Joint Board’s review of contributions reform finish before possibly bringing broadband within the contributions base. We certainly wish the FCC would take more concrete steps on these issues now. But even if the FCC isn’t finishing work on these items, the steps it would take in this order related to these points could bring us closer to realizing our goals on these issues.
For example, as we’ve explained in FCC filings, if last-mile ISPs are providing telecommunications services that are subject to interconnection duties, there’s then no legal or logical way to treat those who simply carry broadband data from one point to another any differently. So this order really could be an important building block in setting up those reasonable “rules of the road” many have been calling for to define how smaller carriers interconnect with transit providers and other network operators. The same is true for contributions. As I recently mentioned at a meeting of state regulators, if you think universal service programs are important in the long run, you really can’t be against including broadband in some way in the contributions base—there are simply no other choices to expand the base. While this order doesn’t reach that point, it could remove an artificial roadblock that some have tried to create in the past to doing so. That’s another important building block too.
So that finally brings me to the fundamental question of “Title II reclassification”—the tool the FCC would use to change the way in which broadband is regulated if the order is approved. Where exactly is NTCA on Title II reclassification? We have consistently supported a specific focus on regulating the underlying transmission of data on all networks—last-mile, middle mile, whatever—pursuant to Title II. This is an approach that moves away from “regulatory silos,” and it would stop the self-classification and arbitrage of services that have tied the communications industry in knots for far too long. We still support that approach as our recent filings show. This is how small carriers like those in NTCA’s membership have operated for years, and Title II regulation specifically of underlying transmission has actually been helpful in enabling, rather than hindering, investment by providing regulatory certainty. (Or, at least that was the case for small rural carriers until the FCC in 2011 decided to start a move away from Title II-based cost-recovery mechanisms and indicated a greater interest in venturing toward model-based USF support!)
So, as the track records of RLECs make clear, Title II can provide a useful framework and does not need to be an impediment to investment in and ongoing operation of broadband networks, if the rules are clear and properly applied and calibrated. Here’s hoping the FCC finds a way to strike this careful balance in its upcoming order. (For example, we have expressed concern to the FCC about the potential burdens on small businesses arising out of any newly created or clarified “enhanced transparency” requirements.) And, for rural America in particular, here’s also hoping that the FCC will then quickly turn back to finding a way to make sure a sufficient and predictable Title II-based universal service update can be put into place for the 40% of the U.S. landmass served by NTCA members and other RLECs.