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Before the Federal Communications Commission Washington, Dc 20554

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Before the Federal Communications Commission Washington, Dc 20554 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, DC 20554 In the Matter of ) ) Protecting and Promoting the Open Internet ) GN Docket No. 14-28 ) Framework for Broadband Internet Service ) GN Docket No. 10-127 COMMENTS OF CTIA – THE WIRELESS ASSOCIATION® Michael F. Altschul Senior Vice President and General Counsel Scott K. Bergmann Vice President, Regulatory Affairs Krista L. Witanowski Assistant Vice President, Regulatory Affairs CTIA – The Wireless Association® 1400 16th Street, NW, Suite 600 Washington, DC 20036 Attorneys for CTIA – The Wireless Association® July 18, 2014 TABLE OF CONTENTS I. INTRODUCTION AND SUMMARY ................................................................................2 II. THE U.S. MOBILE BROADBAND MARKET IS CHARACTERIZED BY INTENSE COMPETITION, ROBUST INVESTMENT, AND RAMPANT INNOVATION, ALL OF WHICH BENEFIT CONSUMERS ...........................................5 A. Competition in the U.S. Mobile Broadband Market Continues to Drive World-Leading Investment and Deployment to the Benefit of U.S. Consumers................................................................................................................6 B. The U.S. Mobile Broadband Market Embraces Internet Openness. ......................11 III. MOBILE WIRELESS BROADBAND REMAINS FUNDAMENTALLY DIFFERENT GIVEN ITS UNIQUE TECHNICAL, OPERATIONAL, AND OTHER CHARACTERISTICS .........................................................................................14 A. Mobile Networks Rely on Government Allocation of Limited Spectrum Resources. ..............................................................................................................15 B. Spectrum is a Challenging Medium that Must Accommodate Shared Services and Users, is Subject to Congestion and Interference Risks, and Requires Flexible Network Practices. ....................................................................17 C. Mobility Itself Heightens the Need for Flexible Network Management. ..............19 D. Tight Integration Between Mobile Wireless Networks and the Devices Operating on Them Further Heightens the Need for Flexibility............................20 E. As the Commission Correctly Predicted in 2010, the Mobile Market’s Ongoing Evolution Calls for Greater Flexibility. ..................................................21 F. Enabled by the Nascent 4G LTE Platform, the Wireless Industry Continues to Develop Mobile Broadband Network Technologies and Services. .................................................................................................................24 IV. ANY RULES APPLIED TO MOBILE BROADBAND SHOULD REFLECT THE UNIQUE AND RAPIDLY EVOLVING NATURE OF THE MOBILE ECOSYSTEM ....................................................................................................................27 A. Mobile Broadband Should At Most Be Subject to Very Limited No- Blocking Requirements. .........................................................................................28 B. Mobile Broadband Should Not Be Subject to Regulation Imposing a Commercial Reasonableness Requirement. ...........................................................33 C. Mobile Broadband Should Not Be Subject to Additional Transparency Requirements. ........................................................................................................34 V. THE COMMUNICATIONS ACT PROHBITS THE COMMISSION FROM APPLYING TITLE II TO MOBILE BROADBAND SERVICE .....................................37 A. Section 332 Bars the Commission from Applying Title II Requirements to Mobile Broadband. ................................................................................................38 i B. There Is No Factual Predicate For Reclassification of Mobile Broadband Services. .................................................................................................................43 VI. APPLICATION OF TITLE II TO BROADBAND SERVICES WOULD JEOPARDIZE THE MOBILE MARKETPLACE’S DYNAMISM, DETER INVESTMENT AND INNOVATION, AND HARM CONSUMERS .............................46 A. A Title II Regime Would Subject Mobile Broadband to a Host of Inappropriate Regulations, Eviscerating the Ability to Innovate and Suppressing Investment. ........................................................................................46 B. Reclassification Would Upend Congress’ Clear Intent to Subject Mobile Services to a Minimal Regulatory Regime. ...........................................................47 C. Forbearance Associated With a “Third Way” Approach Would Itself Be Extremely Risky.....................................................................................................48 D. No Matter How the Commission Effectuated Reclassification, It Would Be Subject to Years of Litigation, Extending Uncertainty and Harming Consumers..............................................................................................................50 VII. CONCLUSION ..................................................................................................................52 ii Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of ) ) Protecting and Promoting the Open Internet ) GN Docket No. 14-28 ) Framework for Broadband Internet Service ) GN Docket No. 10-127 ) To: The Commission COMMENTS OF CTIA – THE WIRELESS ASSOCIATION® CTIA – The Wireless Association® (“CTIA”) responds to the Federal Communications Commission’s (“Commission’s”) Notice of Proposed Rulemaking1 seeking comment on how it should proceed in the wake of the U.S. Court of Appeals for the District of Columbia Circuit’s decision in Verizon v. FCC2 and the Wireline Competition Bureau’s Public Notice seeking to refresh the record in the Framework for Broadband Internet Service docket.3 CTIA and its members are committed to delivering an open mobile Internet, and are proud that the U.S. mobile wireless industry continues to deploy world-leading mobile broadband networks, enabling a diverse array of operating systems, devices, and innovative applications and services that consumers are adopting and using at an exponential pace. 1 Protecting and Promoting the Open Internet, Notice of Proposed Rulemaking, 29 FCC Rcd 5561 (2014) (“Notice”). 2 Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014). See New Docket Established to Address Open Internet Remand, Public Notice, 29 FCC Rcd 1746 (rel. Feb. 19, 2014). 3 Wireline Competition Bureau Seeks to Refresh the Record in the 2010 Proceeding on Title II and Other Potential Legal Frameworks for Broadband Internet Access, GN Docket No. 10-127, Public Notice, DA 14-748 (rel. May 30, 2014), available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0530/DA-14-748A1.pdf (“Broadband Framework PN”). The wireless and wired broadband markets have flourished under the Commission’s carefully balanced approach, and the Commission should retain that framework going forward. Importantly, the Commission has correctly recognized the multiple factors that warrant a unique and flexible approach to mobile broadband services. From that basic foundation, the Commission should: • Recognize that competition in the U.S. mobile broadband market is delivering an open mobile Internet, providing world-leading mobile broadband networks, and creating an innovative mobile ecosystem that benefits U.S. consumers and businesses; • Acknowledge the technical, operational, economic, developmental and other factors that continue to make mobile wireless services different and warrant a mobile- specific regulatory approach; and • Decline invitations to apply backward-looking Title II public utility regulation, which would undercut investment, stifle innovation, and give rise to great uncertainty, all of which would harm consumers. I. INTRODUCTION AND SUMMARY Nearly four years ago, in the Open Internet Order,4 the Commission rejected calls for imposing Title II mandates on broadband networks and concluded that mobile broadband services differed in critical ways from their fixed analogues, and thus warranted mobile-specific regulatory treatment. In particular, the Commission recognized that mobile broadband services were flourishing in a competitive marketplace, were evolving in dynamic fashion, and presented unique technical issues not applicable to fixed services. For these reasons, the Open Internet Order subjected mobile broadband to the transparency rule but applied only a limited version of the no-blocking rule and exempted mobile broadband services entirely from its nondiscrimination mandate.5 4 Preserving the Open Internet, Report and Order, 25 FCC Rcd 17905 (2010) (“Open Internet Order”), rev’d in part Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014). 5 See Open Internet Order, 25 FCC Rcd at 17962 ¶ 104. 2 Since then, the mobile broadband marketplace has continued to thrive as providers race to meet consumers’ demands. Competing providers have deployed 4G networks at a breakneck pace, have rolled out new offerings and service plans, and have maintained network openness. Indeed, there have been no demonstrated consumer harms in the mobile ecosystem, notwithstanding the Open Internet Order’s light touch-approach to mobile services. Instead, U.S. consumers have increased their adoption and usage of mobile broadband services at an exponential pace, and have embraced the profusion of new applications and services that have developed since the Commission first adopted its Open Internet Order. That same regulatory framework has also helped facilitate over 90 billion dollars in investment
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