Broadband Plan Provides Window to Clarify FCC Authority, Public Knowledge Says

One big wild card remains whether commissioners will vote on the plan at the March meeting or whether it will be presented to Congress without a vote. That question is key because the commission could only reclassify broadband if commissioners sign off on it, industry and agency officials said Wednesday.

“Reclassification would provide a firm grounding in law for Commission authority to promote and protect broadband Internet service,” Public Knowledge said in the filing. “This reclassification would facilitate numerous goals previously cited by the Commission as critical to the success of the NBP such as reform of universal service to include broadband and enhanced data collection to determine the true state of broadband availability and affordability. Reclassification would also greatly enhance the free and open character of the Internet, and would expand the range of opportunities for more aggressive regulatory steps geared to promote widespread deployment and adoption of advanced telecommunications services.”

Reclassification opponents argue it would impose a “host of ‘burdensome’ ‘old’ or ‘command and control’ regulations on the provision of broadband services,” Public Knowledge said. “This criticism is unwarranted and mistaken. Carriers may already offer services on a Title II basis without meeting any of the traditional common carrier requirements beyond compliance with the prohibition on unreasonable rates and practices in Sections 201 and 202 and interconnection under Section 251.”

“Having just filed it last night I would be hesitant to say it’s getting traction,” Feld said. “My sense though is that people at the commission understand the broader implications of this, that problems with the underlying authority impact not just the open Internet, but USF reform, privacy, public safety, pretty much anything you'd want to do in the National Broadband Plan. I think that there is a heightened level of concern about figuring out the legal basis for the initiatives that they want to recommend. How that translates into action or not, no one is saying.”

Feld noted the FCC raised the issue of reclassification in its initial notice of inquiry on the broadband plan, approved by commissioners April 8, before Julius Genachowski became chairman. “As a legal matter it was there, it was in the record,” he said. “The commission always had the opportunity to go and do this.” Feld said under Genachowski the commission has sought to deal with open Internet issues separately. The thrust was “don’t make that a distraction in the broadband plan itself,” Feld said, noting that most commissioner comments on reclassification have been made in the context of net neutrality rules or arguments in the Comcast v. FCC case. “We felt that in these final reply comments it was important to get back to basics and remind everybody just what a big deal relevant authority is,” he said. “Our hope is that the Comcast oral argument will be a wake up call to the commission more broadly. They could say it’s the same oral argument on USF reform. It’s the same oral argument on privacy, on affordability, on information gathering. If they're going to move forward they need to either have a Title II framework, which gives them authority, or alternatively they need to very precisely match the Title I authority to each initiative that they want to do.”

The Public Knowledge filing provoked instant criticism from Free State Foundation President Randolph May. “As a matter of policy, it would be a mistake to put broadband services back in the same Title II regime that was used to regulate monopolistic telephone companies,” May said. “As a legal matter, while perhaps possible, it would be very difficult for the FCC to do a reclassification. The information services classification was based primarily on the agency’s determination that in the ISPs’ offering of Internet access services the transmission and information service components were functionally integrated.”

“I do not think the FCC will try and reclassify unregulated broadband to be a regulated telecom common carrier, because it would be a huge political overreach, akin to the overreach of pushing for a public option in health care reform,” said Scott Cleland, founder of NetCompetition.org. “Moreover, reclassification would be a much bigger mess than the FCC’s legal overreach on UNE-P, which effectively delayed the start of national broadband investment for several years over a decade ago.”

The FCC appears divided on the issue of whether to reclassify broadband. FCC Chairman Julius Genachowski declined to say last week whether reclassification language might be part of the broadband plan. Commissioner Meredith Baker said at an event last week doing so would be a “a step backwards” for the FCC (CD Jan 22 p3). Commissioner Michael Copps was a strong critic of earlier decisions to reclassify broadband under Title II. The U.S. Court of Appeals for the District of Columbia Circuit is expected to toss out the commission’s ruling against Comcast’s network management, and the decision may undercut Title I authority over the subject (CD Jan 11 p1).

“Given how oral arguments went in the Comcast case, there’s now a decent chance the Commission tries the Title II route,” predicted Paul Gallant, analyst with the Washington Research Group. “But the carriers would push back pretty hard on this idea [Title II] because there’s no way to know how much of the Title II regulatory baggage the commission would actually forbear from.”

“It appears the reclassification option is on the table -- really has to be for the FCC -- in light of the recent D.C. Circuit oral argument in the Comcast net neutrality case. But putting broadband under the more regulatory common carrier regime would likely prove highly controversial and further inflame the already incendiary net neutrality debate,” said Jeff Silva, analyst with Medley Global Advisors. “The FCC would seem to need political cover from key lawmakers in the Democratic-controlled Congress before moving forward on reclassification. It is questionable -- if not doubtful -- whether Democratic lawmakers in this economic climate have the time or stomach for taking on such an issue in a midterm-election year in which House and Senate majorities could be diminished and in which opponents of broadband reclassification could exploit such a move as an ill-conceived job-killing idea.”