CTIA comes out swinging against Title II net neutrality approach for wireless

CTIA is stepping up its opposition to the FCC's proposed net neutrality rules for mobile broadband after FCC Chairman Tom Wheeler indicated this week that he favored reclassifying broadband as a telecommunications service under Title II of the Telecommunications Act.

The wireless industry's trade group has long argued that wireless broadband is different than wired, especially because of spectrum constraints, and that wireless carriers need more flexibility to manage their networks. CTIA wants the FCC to use Section 706 of the Telecommunications Act to write new net neutrality rules and keep a so-called "light touch" on wireless.

However, during an appearance at the Consumer Electronics Show in Las Vegas this week, Wheeler noted that under Section 332 of the Telecommunications Act, wireless carriers are regulated as Title II common carriers, but crucially the FCC is instructed to forbear, or abstain, from almost all of the onerous Title II regulations.

"There is a way to do Title II right, that says there are many parts of Title II that are inappropriate, and would thwart investment," Wheeler said.

CTIA came out swinging against that position and argued in a new video that a Title II approach would slam the breaks on innovation. Wheeler argued this week that even with the possibility of Title II in the air, wireless carriers and other entities have bid nearly $45 billion in the AWS-3 spectrum auction.

Yet the wireless industry is clearly going to fight any attempt to place carriers under Title II. "If the federal government adopts the Title II net neutrality rules, Americans risk losing the ability to benefit from new services and products, sacrificing the innovation that enables Americans to utilize the mobile platform to improve their lives, and closing the U.S. from its global 4G leadership role, ceding its 5G future to Europe and Asia," the speaker in the CTIA's video intones.

"Title II means treating wireless as a public utility, like a road, electrical grid or water supply. It obstructs the innovation and competition that benefit today's consumers," the video adds. "It means talking from the rules that facilitated over $100 billion in infrastructure investments in the past four years alone. Your gas company doesn't invest like. Does your water company innovate? Utility regulations bring more government, more fees, more taxes, more bills, for less choice, less speed, less innovation."

CTIA also argues that Wheeler is misconstruing Section 332, noting that the Title II approach applies to mobile voice services and that Congress explicitly exempted mobile broadband from being regulated under Title II.

"The FCC cannot now re-write Congress's intent to re-write the Act or re-write history," CTIA President Meredith Attwell Baker said in a statement after Wheeler made his remarks. "Section 332 was a tool to deregulate mobile voice that led to competition and innovation benefiting consumers. The Chairman is correct that that deregulation worked. The Chairman cannot now use that same deregulatory tool to extend regulation and government intrusion where it has never been before. As the courts have made clear, a properly-crafted Section 706 approach could withstand judicial scrutiny and not run afoul of Congress' explicit directive under Section 332."

The FCC declined to comment on Baker's statement.

To get around the CTIA's position, Harold Feld, a senior vice president at public interest group Public Knowledge, said the FCC could formally decide that mobile broadband actually is a "Commercial Mobile Radio Service," as mobile voice is, and not a "Private Mobile Radio Service." The FCC declared mobile broadband was a PMRS in a 2007 ruling, Feld told the Washington Post, and the FCCs can reverse itself as long as it explains its rationale. CTIA argues the 2007 ruling has since been upheld in court several times, meaning it would be tough for the FCC to legally reverse its position.

In any event, CTIA argues the FCC can't redefine mobile broadband as a CMRS because mobile broadband does not access the public switched telephone network. "As the Commission has held," CTIA wrote in an October regulatory filing, "mobile broadband service does not use [phone numbers] to access the Internet … and thus is not CMRS."

For more:
- see this CTIA video
- see this CTIA blog post
- see this Washington Post article

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