Copps Seen as Key Vote for Genachowski to Get for Net Neutrality

The two Republican FCC members are set against net neutrality rules and unlikely to support them in any form, agency and industry officials said. They said the commissioners, Meredith Baker and Robert McDowell, are likely to largely sit out the process of suggesting changes to the order. Genachowski’s proposal could change enough to win the Republicans’ interest, but that seems unlikely, an agency official said. A commission spokeswoman declined to comment.

Copps said he wants changes to Genachowski’s proposal before he'll agree to support an order that imposes net neutrality without reclassifying broadband as a Title II telecom service, and reclassification is his preferred route (CD Dec 6 p1). “Things having to do with wireless, paid prioritization, enforcement generally -- these would have to be dealt with” in any net neutrality order, he said. There would need to be some “alterations in that draft to hold out the promise of moving forward,” Copps added. “That is not an easy ask that I am making."

Some of Copps’ major concerns with the draft order involve the proposed rules for wireless broadband service, which would allow more network management than is proposed for wireline ISPs, agency officials said. The draft’s ban on carriers’ blocking Internet content and telephony applications doesn’t go far enough for Copps, they said. He fears that under the proposed rules the industry still could discriminate against some types of content, commission officials said. They said the commissioner also is concerned that the draft order’s definition of broadband is too broad, in that ISPs could call their service another name and not be subject to net neutrality rules.

In the end, Copps seems likely to back net neutrality rules, though they may be less rigorous than he would like, said some industry lawyers and an executive watching the proceeding. Going against Genachowski’s approach could be seen as opposing the White House, which Copps probably doesn’t want to do, an executive said. “I haven’t heard that he’s seriously in play, but I think he’s threatened enough to demand -- and get -- some changes before he signs off,” an executive said of Copps. “He'll probably go along with Title I approach if need be.” Michael Powell, who was chairman of the FCC under President George W. Bush, said in a panel discussion that a vote against net neutrality by Copps could “blow up” the prospect of any requirements. (See separate report in this issue.) Copps’ office declined to comment beyond what the commissioner has already said publicly.

Copps “appears to have more strongly held demands on net neutrality” than Clyburn, and “will probably make stronger demands on the chairman,” said pay-TV lawyer Paul Feldman of Fletcher Heald. He cited Copps’ history and recent public statements. “It certainly appears like the Title I die has been cast,” Feldman said. “I think it would be very hard for Commissioner Copps to turn that around” in the two weeks before the vote, he added.

Clyburn and Copps “understand that this is the best chance for a rule in the foreseeable future,” said Legal Director Harold Feld of Public Knowledge, which seeks net neutrality rules. But “if you end up with a bad rule that ends up baked into the system, that may be worse than not having a rule” for another year or two, he said. “This is what the commissioners have to seriously weigh with their conversations with the chairman’s office,” Feld said. “The Republicans have taken themselves out of the equation,” so Genachowski “has lost the opportunity to say he can get Baker and Clyburn if he thought Copps was demanding too much,” he said. “Because the Republicans are not in play, there is an advantage for those seeking much tougher changes to the rule. But at the same time everyone is aware that there’s a risk that it might all fall apart.”