As the FCC crawls slowly towards a decision on net neutrality, I thought it would be useful to talk a bit about forbearance. Forbearance means restraining from doing something, and all of the proposals to protect net neutrality that involve Title II regulation require forbearance to some of the FCC’s rules.
The FCC is somewhat unique when it comes to regulation because Congress has given them the right for forbearance, meaning the FCC can selectively decide when to apply certain laws and regulations. Most federal agencies don’t have this power. But this makes sense for the FCC since they are regulating such diverse companies such as cable companies, telephone companies, cellular companies, fiber networks, microwave companies and a number of other niche technologies. It’s always been obvious that rules that make sense for one of these industries might not make any sense when applied to another one.
If the FCC was to put broadband providers under Title II this means subjecting them to all of the rules that are still in place from the Telecom Act of 1934 as well as many of the rules in the Telecom Act of 1996. It is the fear of having to comply with all of these rules that is causing the harsh reaction of ISPs to the idea of being regulated. (Well, that, or just the idea of being regulated at all).
Let’s look at one example of the kinds of rules that are required by the Telecom Act of 1934. That Act requires all telephone companies to issue tariffs. People tend to think of tariffs as a price list and a description of the products offered by a telephone company. But tariffs are much more than that. Tariffs include details of the way that a carrier must interact with its customer. Tariffs define things like how much notice you have to give a customer before you can disconnect them for non-payment. Tariffs require a carrier to give notice before changing rates, meaning that rates can’t be changed on the fly, but must wait for a period of time before being implemented. Tariffs also require nondiscrimination between customers, and that might be the biggest part of tariffs that scare ISPs, who routinely offer different deals to customers every day.
Additionally, every state has developed specific rules for what must be contained in tariffs filed in that state. This means that a nationwide ISP would have to file a different tariff in each state and follow different rules in each state. If forbearance is not applied to these parts of Title II then ISPs would not just be regulated by the FCC, but by each of the fifty states.
There are many parts of Title II that would also not make sense to apply to ISPs. For example, there are sections of the various Acts that look at things like protecting customers from obscene phone calls or the requirement to provide operator services that obviously don’t apply to data services.
But there are other requirements that have the ISPs running scared. For example, the Telecom Act of 1996 requires the large telephone companies to unbundle their networks and to give access of their networks to competitors. And this does not just apply to telephone lines but also to DSL. There is no reason why this could not be applied to cable companies to bring competition into the data market. And there are related rules that regulate things like collocation and that require interconnections between carriers that exchange voice and data traffic.
There are yet other portion of the Title II rules where it is not clear if forbearance ought to be applied. For example, the FCC requires jurisdictional separation of revenues and costs to determine what is under the control of the FCC versus the control of states. Would the FCC just declare broadband to be an Interstate service to keep it all under their control? That is what has been done with DSL, and yet the states are still involved in many aspects of regulating DSL.
It appears to me like the idea of forbearance in this case is going to be extremely complicated. There are repercussions for deciding to forbear or not to forbear different parts of the existing telecom rules. It’s a huge puzzle to solve, and I am going to guess that every decision to forbear or not forbear will present a chance for legal challenge.
But the FCC forbears things all of the time. In fact, there is a legal process that allows for carriers to ask for forbearance from a specific rule, and if the FCC does not act within a year then the forbearance is assumed to be granted.
We already know that Verizon and AT&T are threatening to sue the FCC should they try to regulate broadband under Title II. Even should the FCC be able to win such a challenge, they would have to expect a decade where ISPs are constantly asking for additional forbearance from whatever regulation the FCC chooses to apply to broadband. If nothing else, this sounds like a full employment act for telecom lawyers.