Net Neutrality Item Seen as Forbidding Blocking of Websites, Telephony Apps

Genachowski declined to comment on whether he'll seek a vote on a net neutrality order at the December meeting and whether he wants to proceed without reclassification. “I am proud of the process we've run” with stakeholder meetings at the FCC on net neutrality, he told reporters after Tuesday’s commission meeting. “It has been a participatory process, engaged with the broadest possible array of stakeholders."

A draft net neutrality order needed to circulate by 11:59 p.m. Tuesday to get to commissioners’ offices the usual three weeks before a meeting vote. Commissioners’ offices hadn’t expressed opposition to getting the full draft Wednesday, a day later than usual for a draft item set for a vote, an FCC official said. The full text of the draft item, if there is one set for a Dec. 21 vote, probably will circulate Wednesday, the official said. A commission spokeswoman declined to comment.

The expected item, which multiple officials said would be circulated late Tuesday or early Wednesday, would close several weeks of frenzied behind-the-scenes negotiations, but could open a new round of even more fevered negotiations. Democratic Commissioners Michael Copps and Mignon Clyburn are advocates of a Title II approach. Verizon has lobbied hard for sunset provisions. And House Republicans have said any FCC neutrality rules would be “an act of war” (CD Nov 22 p1).

"Whatever they do,” Congress “can reverse it,” Rep. Marsha Blackburn, R-Tenn., said in an interview. She said she plans next year to reintroduce her bill (HR-3924) to block the FCC from implementing net neutrality rules. Blackburn called any such move by the agency an “overreach,” a “power grab,” and a “hysterical reaction” to a “hypothetical problem.” It shows “the lack of respect that the FCC under Chairman Genachowski has shown for the House and the Senate, the unwillingness to work with us on addressing issues, and their penchant for stepping forward on their own and trying to legislate through the rules process,” she said. Blackburn said she heard the rulemaking notice is 80 pages long, which she said is much longer than the deal worked out by outgoing Commerce Committee Chairman Henry Waxman, D-Calif.

"To adopt an order of that importance on the eve of a new Congress would be tantamount to an act of war,” said Rep. Lee Terry, R-Neb., restating an analogy he'd made earlier. “Many of us on the [Commerce] committee would view this order as attempt to thwart any Congressional involvement."

Genachowski won the full support of three Democratic senators: Communications Subcommittee Chairman John Kerry of Massachusetts and Byron Dorgan of North Dakota and Ron Wyden of Oregon. They wrote the FCC chairman Tuesday, asking he “bring the Open Internet rulemaking to conclusion in December.” The action would provide certainty that the Internet remains an open network “under the watchful eye” of the FCC, the senators said.

Genachowski has “led a difficult, inclusive, and often technical debate as matter of both law and engineering on the question of the proper role of the agency and rules in this space,” Kerry and the other senators said. “We are also well aware that it is always easier to criticize the policy-making process than it is to make good policy -- and as a result you have taken incoming fire from all sides. Yet, while time consuming, we think the deliberation and discourse has moved the center of opinion within the community of experts, industry, and advocates to a principled compromise that is sustainable and will work."

Verizon is in “wait and see” mode regarding the order, a spokesman said. He called sunset provisions important because Congress has indicated it wants a chance to review neutrality. “The point to emphasize is, whatever comes out tonight or tomorrow is the starting point for discussions, not the end,” a public interest advocate said.

Most industry executives seemed to view the expected item with a sense of relief, saying at least it brings clarity after more than a year of often anguished back and forth. “Title II would have been broad overreach that would certainly have resulted in litigation,” said Independent Telephone and Telecommunications Alliance Vice President Joshua Seidemann. “Whereas Title I, if the commission exercises its ancillary authority, stands a better chance of being upheld on appeal, or not even being appealed at all.” The Hispanic Leadership Fund, an anti-regulatory group, said the expected item “will impose harmful new regulations” that will undermine an already rickety economy.