RE: In the Matter of Safeguarding and Securing the Open Internet (WC Docket No. 23-320); Restoring Internet Freedom (WC Docket No. 17-108); Bridging the Digital Divide for Low-Income Consumers (WC Docket No. 17-287); Lifeline and Link Up Reform and Modernization (WC Docket No. 11-42).
Dear Ms. Dortch:
The undersigned chambers of commerce representing business communities across the United States respectfully submit these comments to the Federal Communications Commission’s (“Commission” or “FCC”) above-titled Notice of Proposed Rulemaking (“NPRM”).[1] The NPRM proposes to classify broadband under Title II of the Communications Act and impose a burdensome regulatory framework on the broadband marketplace. We express strong concern with the Commission’s proposed Title II classification given the adverse impact on enhancing broadband access for our businesses and communities and because Title II classification is unlawful.
I. Access to Reliable, High-Speed Broadband Internet is Critical for Businesses and Communities Across the United States
Broadband internet access is crucial for enabling e-commerce, remote work, online education, American global competitiveness, and other important societal and economic objectives. While the private sector and governments have made significant strides to connect all Americans, some communities remain unserved. The business community strongly supports efforts to expand access to broadband including through reducing barriers to private sector investments and targeted government broadband investments, when appropriate, in unserved communities. The Commission’s choice of regulatory framework for broadband is consequently critical to enable, or hinder, this objective.
II. The Record Underscores that Title II Classification is Unlawful
Title II classification of broadband is unlawful for several reasons, echoed by numerous commenters.[2] One, the statutory text of the Communications Act, previous Commission actions, and U.S. Supreme Court precedent indicate that broadband should be considered an “information service” rather than a “telecommunications service” and thus remain under a Title I regulatory framework instead of Title II.[3] Second, the Major Questions Doctrine prevents the Commission from classifying broadband under Title II because such a determination would have significant political and economic impacts and Congress has not clearly authorized utility-style regulation of broadband.[4] Instead of pursing an unlawful rulemaking, the Commission should focus on reducing barriers to broadband access.
III. The Record Emphasizes the Restoring Internet Freedom Order’s Approach Enabled Increased Competition, Significant Investment, and Lower Prices for Consumers
In 2017, the Commission adopted the Restoring Internet Freedom Order (“RIF Order”) which returned to a targeted, innovation-friendly approach for regulating the broadband marketplace.[5] As the U.S. Chamber of Commerce and other commenters note, the targeted approach taken by RIF Order unlocked significant private sector broadband investment, increased competition between providers, and lowered prices, all benefiting consumers and businesses.[6] These trends also demonstrate that the broadband marketplace is healthy, and that burdensome regulation is unnecessary.
Private sector broadband investment increased after the adoption of the RIF Order, reaching $102.4 billion in capital expenditures in 2022.[7] This occurred for both wireless and fiber infrastructure investments.[8] As a result, Americans have more choices than ever before at faster speeds.[9] Moreover, these choices are not just between providers but also between different types of broadband technologies, including cable, fiber, mobile wireless, fixed wireless, and satellite. Increased innovation and substantial private investments are paired with lower prices even in an era of persistent inflation.[10] Broadband prices have decreased by 12% since 2017 across plans offering different internet speeds and across broadband technologies.[11] In sum, consumers and the American public clearly benefit from the present regulatory framework.
IV. The Record Demonstrates that Title II Classification Would Hinder Investment and the Economy
Despite the evident success of the present regulatory framework, the NPRM would take the broadband industry in the opposite direction. The Commission’s previous attempt in 2015 to impose a Title II framework slowed broadband deployment and access through decreased private sector capital expenditures and an increased regulatory burden on broadband providers.[12] A recent study by the Phoenix Center underscores the concrete consequences of Title II classification, finding a $81 billion investment decline, a 2.9% decrease in information sector employment, and a $145 billion annual reduction in Gross Domestic Product.[13]
We are particularly concerned that Title II reclassification would negatively affect the broadband access objectives outlined by the Infrastructure Investment and Jobs Act’s primary broadband initiative, the Broadband Equity, Access, and Deployment (“BEAD”) program. Every eligible state and territory is collaborating with the Department of Commerce on the BEAD program with the Department making significant progress to date.[14] Considering private sector investment is key to ensuring the success of the program, the Commission should not promulgate regulations that risk limiting broadband investment.
These quantifiable costs arising from the 2015 attempt to impose Title II classification on broadband demonstrates that the NPRM requires a robust cost-benefit analysis to understand the impacts on investment and the economy.
V. Conclusion
Access to high-speed broadband internet is essential for American business and the communities we serve. We urge the Commission to reverse course and maintain the present regulatory framework for broadband.
Sincerely,
National
U.S. Chamber of Commerce
Alabama
The Business Council of Alabama
Mobile Chamber
Prattville Area Chamber of Commerce
South Baldwin Chamber of Commerce
Arizona
Chandler Chamber of Commerce
Arkansas
Camden Regional Chamber of Commerce
Florida
Daytona Regional Chamber of Commerce
Greater Boca Raton Chamber of Commerce
Greater Miami Chamber of Commerce
Tampa Bay Chamber
Georgia
Georgia Chamber of Commerce
Metro Atlanta Chamber
Iowa
Iowa Association of Business and Industry
Fort Madison Partners
Mason City Chamber of Commerce
Sioux Center Chamber of Commerce
Kentucky
Kentucky Chamber of Commerce
Union County KY Chamber of Commerce
Maine
Barry County Chamber and Economic Development Alliance
Michigan
Michigan Chamber of Commerce
Detroit Regional Chamber
Grand Rapids Chamber
Michigan West Coast Chamber of Commerce
Oscoda-AuSable Chamber of Commerce
Shakopee Chamber & Visitors Bureau
Southern Wayne County Regional Chamber
Minnesota
Brainerd Lakes Chamber of Commerce
Cannon Falls Area Chamber of Commerce
Delano Area Chamber of Commerce
Greater Mankato Growth
Lonsdale Area Chamber of Commerce
Marshall Area Chamber of Commerce
Minneapolis Regional Chamber
Winona Area Chamber of Commerce
Mississippi
Mississippi Economic Council - the State Chamber
Area Development Partnership - Greater Hattiesburg, MS
Missouri
Missouri Chamber of Commerce and Industry
Kennett Chamber of Commerce
St. Charles Regional Chamber
Nebraska
Kearney Area Chamber of Commerce
Seward County Chamber & Development Partnership
North Dakota
Greater North Dakota Chamber
The Chamber Grand Forks / East Grand Forks
FMWF Chamber of Commerce
Ohio
Chillicothe Ross Chamber of Commerce
Ottawa Area Chamber of Commerce
Toledo Regional Chamber of Commerce
South Dakota
Greater Sioux Falls Chamber of Commerce
Tennessee
Kingsport Chamber
Texas
Fort Bend Chamber
Grapevine Chamber of Commerce
Longview TX Chamber of Commerce
North Texas Commission
Rockport-Fulton Chamber of Commerce
West Columbia Chamber of Commerce
Wisconsin
Marinette Menominee Area Chamber of Commerce
[1] Safeguarding and Securing the Open Internet, Notice of Proposed Rulemaking, WC Docket No. 23-320, FCC-23-83 (Oct. 19, 2023), https://tinyurl.com/y6hhry6y (“NPRM”).
[2] NCTA Comments at 10-46; USTelecom Comments at 9-35; CTIA Comments at 46-78.
[3] Chamber Comments at 40-48.
[4] Chamber Comments at 49-61.
[5] Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, 33 FCC Rcd 311 (2018), http://tinyurl.com/mt3a7bpj (“RIF Order”).
[6] See Comments of the U.S. Chamber of Commerce, WC Docket No. 23-320, at 6 (filed Dec. 14, 2023) (“Chamber Comments”); Comments of NCTA – The Internet & Television Association, WC Docket Nos. 23-320, 17-108, 17-287, at 86-87 (Filed Dec. 14, 2023) (“NCTA Comments”); Comments of CTIA, WC Docket No. 23-320, at 13-14 (filed Dec. 14, 2023); Comments of USTelecom, WC Docket Nos. 23,320, 17-108, 17-287, 11-42, at 1-2 (filed Dec. 14, 2023) (“USTelecom Comments”).
[7] 2022 Broadband Capex Report, USTelecom (Sept. 8, 2019), http://tinyurl.com/3cxdjhf9; Michael Mandel & Jordan Shapiro, Investment Heroes 2023, Progressive Policy Institute, at P7 (Oct. 2023), http://tinyurl.com/6jp6f9f8).
[8] Chamber Comments at 8-9.
[9] NCTA Comments at 89-90; Chamber Comments at 11.
[10] NCTA Comments at 91; USTelecom Comments at 38-39.
[11] Chamber Comments at 12.
[12] Chamber Comments at 16-18.
[13] George S. Ford, Investment in the Virtuous Circle: Theory and Empirics, Phoenix Center for Advanced Legal & Economic Public Policy Studies, at 22 (December 2023), http://tinyurl.com/yeuzsh8w.
[14] BEAD Initial Proposal Progress Dashboard, National Telecommunications and Information Administration, Department of Commerce (accessed Jan. 8, 2024), https://www.internetforall.gov/bead-initial-proposal-progress-dashboard.
