Open Title II Docket Sends ‘Confusing’ Message to Rest of World, McDowell Says
The rest of the world is watching to see whether the U.S. will regulate a portion of the Internet, and FCC Commissioner Robert McDowell finds the idea “a little unsettling,” he said at a Silicon Flatirons conference on spectrum policy Tuesday. The danger, he said, is that a bad idea adopted by U.S. policymakers could get “amplified abroad” as teams at the ITU read everything the FCC writes. McDowell also discussed ideas for getting more spectrum into the hands of consumers, and endorsed the idea of paying federal users to get off their spectrum.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
The open Title II docket has sent a “confusing message,” McDowell said, with the topic coming up in every conversation he has when traveling abroad and discussing World Conference on International Telecommunications issues. Foreign officials ask him: If the U.S. is seriously considering classifying a portion of the Internet as a common carrier, what’s wrong with the rest of the world considering it as well? And why don’t we then regulate more of the Internet? “Whether that was the original animal, that’s how it’s being sold” overseas, McDowell said.
McDowell has long been critical of reclassifying broadband as a Title II service, advocating a “light touch” that encourages business investment and innovation. Commissioner Ajit Pai railed last month against “anachronistic laws” in the Telecom Act that don’t make sense in an IP-based marketplace, and pushed for closure of the Title II docket (CD Oct 17 p3).
McDowell is “absolutely right,” said Phoenix Center President Lawrence Spiwak. The long-standing policy of the U.S. is to not impose onerous regulations on the Internet, he said. While the docket is open, it sends a message both domestically and internationally that the U.S. is “not fully committed” to that policy, he said. “What is the purpose of having this docket if not to use this docket?” Spiwak asked. It’s a “sword of Damocles hanging over the industry’s head."
"This notion about sending a message to the rest of the world is utter nonsense,” said Harold Feld, senior vice president of Public Knowledge. “To suggest that delegates to the ITU cannot tell the difference between what is suitable for domestic policy and what is suitable for ITU jurisdiction does not appear to be supported by the facts on the ground.” Even if this were the case, it’s unlikely anyone making that argument would be swayed by an FCC decision to close the Title II inquiry at this point, he said. “If the FCC announced tomorrow it was closing the Title II docket, wouldn’t these same supporters of ITU jurisdiction argue that this was the consequence of political interference solely designed to circumvent ITU jurisdiction?"
Communications lawyer Andrew Schwartzman disputed McDowell’s premise that Title II regulation means regulation of the Internet. That premise “is wrong,” he said. “What would be truly unsettling is if the United States were to drop its commitment to an open Internet."
Asked for key takeaways from his experience as a commissioner, McDowell said the wireless sector’s success has shown him that “light touch” regulation works. The commission should also avoid enacting policies that may be obsolete by the time they get out into the marketplace, he said. The commission should avoid making it harder for secondary markets to work, and respect antitrust law and concentrations of power that result in user harm, while also allowing spectrum that’s already in the market “to flow to its highest and best use,” he said.
McDowell endorsed the idea of giving executive branch agencies incentives to get off their spectrum. Commissioner Jessica Rosenworcel said Tuesday that giving federal users the proceeds from spectrum auctions could help the commission get federal frequencies into the hands of commercial users (CD Nov 14 p3). The federal government now has an “opaque process” of faceless and nameless bureaucrats coming up with numbers about how much it would cost to get federal users off the spectrum, McDowell said; nobody comes to the FCC and says, “Here, I've got all this leftover spectrum, please get rid of it for me."
To find the kinds of incentives that might work, the commission needs to look at what has worked in the past, he said, such as the 60 MHz auction, 700 MHz auction, and 90 MHz in AWS-1. The commission should “adopt a cooperative model rather than a coercive model” for federal users, and consider financial incentives. “If sticks aren’t working, try carrots."
McDowell said he’s concerned the commission isn’t “doing all that well” in hitting the 500 MHz benchmark for new wireless broadband use, called for in a 2010 executive order. The possible silver lining, he said, is that perceived spectrum shortages could lead to innovations.