AT&T today urged the Federal Communications Commission to avoid reclassifying broadband Internet access as a telecommunications service, which is something network neutrality advocates are asking the FCC to do.

Reclassification would open broadband providers up to common carrier rules under Title II of the Communications Act, similar to regulations that have covered our phone system since 1934. Recent calls for reclassification of broadband stem from a federal appeals court ruling that the FCC could not impose strict network neutrality rules, such as prohibitions against blocking Web services and Internet fast lanes, without first declaring the providers to be common carriers.

AT&T’s anti-regulatory view isn’t surprising. It’s already arguing that the Public Switched Telephone Network should be shut down and replaced with largely unregulated Internet-based voice service.

The company’s eight-page ex parte filing claims that the reclassification of broadband would backfire in all sorts of unintended ways that would wreak havoc on the Internet, without even achieving the goal of banning paid prioritization deals in which Web services pay for faster access to consumers. Here’s a copy of the letter (thanks to Wall Street Journal reporter Gautham Nagesh for passing it along).

One of the most interesting arguments made by AT&T is that Title II reclassification would force giant changes in the peering and interconnection markets. AT&T Senior VP Robert Quinn wrote:

Indeed, reclassification would raise a host of issues that reclassification proponents have completely ignored in their advocacy. For example, if broadband Internet access service is a telecommunications service, then broadband Internet access providers could be entitled to receive transport and termination fees under section 251(b)(5).15. The Commission could not avoid this occurrence by establishing a bill-and-keep regime because, unlike voice traffic, Internet traffic is asymmetric. And because Internet traffic would now be subject to reciprocal compensation, virtually every settlement free peering arrangement would have to be replaced by newly negotiated arrangements implementing the reciprocal compensation provisions of the Communications Act. Moreover, in those instances in which reciprocal compensation does not apply, ISPs would be entitled to file tariffs for the collection of charges for terminating Internet traffic to their customers.

Reclassification could also bring lots of new requirements for ISPs that don’t directly serve consumers, AT&T argued:

[I]t is foolish to think that the Commission could reclassify the provision of broadband Internet access to consumers as a telecommunications service without similarly reclassifying a broad array of other functionally analogous services in the Internet ecosystem. For example, there is no logical or legally sustainable basis to distinguish between ISPs serving consumer “eyeballs” and those serving content and other edge providers. Likewise, transit providers and content delivery networks (CDNs) would be telecommunications service providers subject to Title II, as would connected device customers. (The latter would be resellers of telecommunications services and thus telecommunications service providers in their own right.) Indeed, the logic behind reclassification would dictate that when a search engine connects an advertising network to a search request or effectuates a connection between a search user and an advertiser, it too would be providing a telecommunications service. And so too would an email provider that transmits an email or a social network that enables a messaging or chat session. ... The key legal rationales for any Title II reclassification decision would thus necessarily extend to any Internet provider that holds itself out to customers as arranging for the transmission of data from one point on the Internet to another, whether or not it owns transmission facilities. As discussed above, this category would extend to ISPs such as Earthlink and AOL that do not own last-mile transmission facilities; to content delivery networks (“CDNs”) such as Akamai that hold themselves out to the commercial public as transporters of data to distant points on the Internet; to providers of e-readers like Amazon.com, which provides Internet access through the Kindle; to companies like Google that provide advertising-supported Internet search services and, on behalf of countless commercial customers, arrange for the transmission of advertising content to end users; and to a variety of other online transport providers ranging from Netflix to Level 3 to Vonage. In short, Title II reclassification would be a sledgehammer, not a scalpel.

This is nonsense, AT&T critics say

AT&T doesn’t seem to accept the possibility that the FCC could limit reclassification to a specific type of Internet service. In fact, the FCC’s treatment of broadband as an “information service” that isn’t subject to common carrier regulation is the result of several decisions tailored to specific types of services. It started in 2002 when the FCC classified cable modem service as an “information service.” This continued in 2005 when the FCC declared wireline broadband (such as DSL and fiber) an information service. In 2007, wireless broadband was classified as an information service.

"As usual, AT&T's positions are laughable at best—though disingenuous is more like it," Matt Wood, policy director of consumer advocacy group Free Press, told Ars. "Nothing in Title II says that every last provision has to apply to any Title II service. That's the whole point of forbearance. The fact that broadband providers could be entitled to something doesn't mean they actually are entitled to it, or that AT&T's cost-causation story is true."

"To look at a real-world example instead of an AT&T fantasy: mobile voice is a common carrier service, and yet CMRS [commercial mobile radio service] providers are barred from charging access fees," Wood also said. "And many enterprise market broadband services are telecom services yet still subject to bill-and-keep and privately negotiated contracts. Nothing about Title II commands the results that AT&T's straw man argument suggests."

Public Knowledge Senior VP Harold Feld agreed. "To a large extent, this is just scary mumbo-jumbo to make Title II look big and complicated," Feld told Ars. "It's like 'technobabble' on Star Trek. People make phone calls every day, but AT&T has no right to demand to negotiate special "access charges" from Public Knowledge (based on content) or Pizza Hut (based on volume). I pay my phone provider to negotiate my 'termination fee' and 'access charges' etc., etc."

Many of the issues raised by AT&T were already hashed out in FCC proceedings in 2010, "which saves a lot of time," Feld said.

As for paid prioritization, AT&T claims reclassification won’t give net neutrality advocates what they want:

The supreme irony here is that Title II reclassification would not even preclude the paid prioritization arrangements that are purportedly animating reclassification proposals. Title II does not require that all customers be treated the same as reclassification proponents seem to believe. Rather, by its express terms, Title II prohibits only “unjust and unreasonable” discrimination, and it is well established that Title II carriers may offer different pricing, different service quality, and different service quality guarantees to different customers so long as the terms offered are “generally available to similarly situated customers.”

Despite what AT&T says, the federal appeals court that struck down the FCC’s net neutrality rules didn’t dispute the FCC’s authority to impose common carrier obligations if it were to reclassify broadband, and the court said that anti-discrimination and anti-blocking rules are common carrier obligations.

Wood noted that while "Title II allows for reasonable discrimination in concept, the FCC can prohibit paid-prioritization as an unjust and unreasonably discriminatory practice. The fact that Title II may allow some types of discrimination does not mean that it must allow all types of discrimination."

"We have 80 years of telecom law," Feld said. "There are lots of precedents and arguments on how the Commission could interpret things. Very few things in the Act are as compulsory or absolute as opponents of Title II like to argue... I am confident that the commission can craft a Title II regime that adequately protects consumers and competition without being unduly burdensome on providers."

AT&T does make one prediction that sounds pretty likely: Reclassification would lead to years of legal wrangling. After all, Verizon appealed the FCC's original net neutrality order and won in court, leading to the latest FCC proposal to outlaw blocking but allow paid prioritization.

“Beyond all this, any forbearance decision today could be prone to judicial challenge and attempted reversal by future Commissions," AT&T said. "No issue would ever be settled, and the Internet ecosystem would be subject to a state of perpetual regulatory uncertainty.”

So far, FCC Chairman Tom Wheeler has resisted calls to reclassify broadband as a telecommunications service but said he "won't hesitate" to change his mind if ISPs misbehave.