Net Neutrality

ACA Gears Up for Title II Fight

Big broadband providers are not the only ones kicking and screaming about the proposed imposition of common carrier regulations on US ISPs. Small and midsized broadband providers aren't too thrilled about the prospect either.

Leaders and members of the American Cable Association (ACA) , which represents smaller providers serving about 6.5 million broadband subscribers, are making that point very clear. Speaking on both a conference call Tuesday and a recent conference panel, ACA executives and members threatened to take the US government to court if, as widely expected, the Federal Communications Commission (FCC) decides to reclassify ISPs as Title II service providers later this month.

"We're off to court" if the FCC adopts a Title II regulatory regime for small and midsized broadband providers, declared Tom Cohen, a partner at Kelley, Drye & Warren, the ACA's law firm. Speaking on a panel at the National Cable Television Cooperative Inc. (NCTC) 's Winter Educational Conference in San Antonio, Texas last week, he predicted that the issue could end up going as high as the Supreme Court. "That's how big it is," he said.

Like their counterparts at AT&T Inc. (NYSE: T), Verizon Communications Inc. (NYSE: VZ), Time Warner Cable Inc. (NYSE: TWC) and other large broadband providers before them, ACA leaders and members emphasized that they have no problems with the four main net neutrality principles for the Internet spelled out by both FCC Chairman Tom Wheeler and President Obama. They said that they have no interest in or financial incentive for blocking, throttling, discriminating against or charging fees for prioritizing content from "Internet edge providers" like Netflix Inc. (Nasdaq: NFLX), YouTube Inc. or Amazon.com Inc. (Nasdaq: AMZN). (See Fretting Over Title II .)

"We deliver what customers want," said Ben Lovins, senior vice president of the telecommunications division at Jackson Energy Authority in Jackson, Tenn., speaking on yesterday's conference call. "We do not throttle traffic. We don't block anybody."

Even if they wanted to disrupt web traffic, the small broadband providers contended, they're way too small to make a difference. "We don't have any way of affecting the Internet as a whole," Lovins said.

While they have no issue with the net neutrality concept, ACA leaders and members argue that the adoption of Title II rules would tie them up in knots. They said Title II regulations would drive up their pole and duct attachment rates, lengthen and complicate dispute resolutions and generally make it costlier to wire and serve sparsely populated rural areas. "One-size-fits-all regulations will have a major disproportionate impact on our members," said ACA President & CEO Matthew Polka.

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ACA officials have been pressing the FCC to exempt smaller broadband providers from "unwarranted and burdensome Title II regulatory obligations" if the Commission ends up adopting Title II, as seems very likely. While they report making some progress with their arguments at the agency, they don't believe it will do anything on that front before reclassifying ISPs.

If the FCC proceeds as expected and the ACA goes ahead and files suit, officials said they will make the case that the Commission didn't perform its "required granular analysis" of the impact that the regulatory change would have on smaller providers. ACA leaders complain that the agency hasn't consulted with smaller providers or studied the effect that the new rules might have on them, despite the group's urgings and recommendations by the Small Business Administration.

"The stakes are incredibly high," Polka said. "All of our options are on the table."

— Alan Breznick, Cable/Video Practice Leader, Light Reading

Mitch Wagner 2/4/2015 | 4:40:55 PM
Opposite effect Making it harder for small companies to compete is precisely the opposite of the intended effect of net neutrality. 

At this rate, companies are going to have to stand in line to sue. Seems like everybody wants to sue to block the regulation. As I said elsewhere, this is going to drag on for years to come. 
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