WASHINGTON D.C, – Yesterday, the Consumer Federation of America (CFA) submitted comments to the Federal Communications Commission (FCC) in support of the “2023 Open Internet Order.” Based on 10 research reports, which were hyperlinked to the comments, and 18 peer-reviewed journal articles, conference papers, and book chapters published over the past two decades, CFA showed that Broadband Internet Access (BIAS) is rightfully classified as a telecommunications service under the Communications Act of 1934 (the Act), as amended by the Telecommunications Act of 1996. That classification was articulated in the FCC’s “2015 Open Internet Order” and upheld by the reviewing Court in 2016.

“The decision by the FCC to restore the telecommunications classification in the 2023 proposed rule, puts BIAS in its rightful place as the premier communications service of the digital information age,” said Dr. Mark Cooper, senior fellow at CFA and author of the comments, as well as all supporting documents. 

“A telecommunications classification of BIAS (as a Title II service) not only enables the FCC to restore the principle of  ‘innovation without permission’ at the edge of the network, which drove the virtuous cycle of innovation and investment for half a century,” Cooper added, “it enables the commission to tackle three of the most important duties that the FCC is charged with in Title I of the Act – national security, public safety and universal service.”

The 100-page comments argue that the FCC needs the authority to oversee BIAS, which has become an even more essential communications service in recent years because of several changes in circumstances:

• the remarkable growth of BIAS and its penetration into all aspect of daily life,
• the resulting increase in the need for universal service, which is more important than ever,
• the national security challenges posed by international developments, and
• the increasing importance of the role BIAS plays in public safety as a result of the Covid-19 pandemic.

The CFA comments identify and agree with 79 issues that the FCC concluded argue for a telecommunications classification.  When the FCC Flip-Flopped after the 2015 Open Internet Order and tried to abandon oversight over broadband, the Court (in a case brought by Mozilla) pointed out numerous flaws in the Order and remanded several important issues that the FCC ignored.  The Court concluded that there was no point in remanding the entire order, since the Supreme Court would grant deference to agency discretion in classifying broadband (Chevron deference).  These comments, the FCC through discussion of issues and the Mozilla ruling, completely undercut the “Flip Flop Order.”   The flaws in the “Flip-Flop Order,” fall into seven broad categories of mistakes the FCC made:

• Erroneous Economic Framework v. Internet Reality,
• Analytic Weaknesses,
• Key Unsupported Public Functions,
• Undermining the Virtuous Cycle of the Internet Economy,
• The Role of Edge Demand and the fact that Transparency is not enough to prevent abused by dominant network owners,
• Clear Legal Authorities for the FCC to exercise oversight of BIAS,
• Evolution of Open Internet Rules

“It never made sense for the FCC to abandon oversight over BIAS and turn its back on over 50 years of successful oversight of the Internet,” Cooper concluded.  “It is clear the ‘Flip-Flop Order’ was wrong on the facts, wrong on the technologies and wrong on the  law, so the ‘2023 Open Internet Order’ can easily be upheld by Chevron deference, but it would be even more relevant and important, if the court returned to the compelling case for the telecommunications classification based on the underlying reality of the Internet, as the Court did less than a decade ago upholding the ‘2015 Open Internet Order.’”

The comments are available at: /media/uploaded/post_27697/FCC-Coment-12-14.pdf