Policy

Dear Santa: Close Title II

12/19/2011 12:01 AM Eastern

Washington — “If Santa could bring me just one gift
this year, it would be to close the proceeding that seeks
to classify broadband Internet-access services under
Title II for the first time,” Republican Federal Communications
Commission member Robert McDowell said in a
speech to communications lawyers last week, “but I don’t
know if Santa will be that generous to me.”

Cable operators would also be just as happy to remove the
threat that the FCC will reclassify broadband as a telecommunications
service subject to mandatory access requirements
under the federal Telecommunications Act.

Sen. Jim DeMint (R-S.C.) was hoping to play Santa
Claus. Following their Senate Commerce Committee
nomination hearing two weeks ago, FCC nominees Ajit
Pai, a Republican, and Jessica Rosenworcel, a Democrat,
were asked to provide written answers to a number
of questions, including a series of process-reform
questions from one senator. But DeMint had only one
question.

“If confirmed, would you support closing the FCC’s
June 17, 2010 notice of inquiry in which the commission,
among other questions asks, ‘for comment on the
legal and practical consequences of classifying Internet
connectivity service as a ‘telecommunications service’
to which all the requirements of Title II of the Communications
Act would apply?” he asked.

Santa would be bringing Republican McDowell at
least one ally in that fight to close the door on Title II.

According to copies of their answers supplied to Multichannel
News
, neither FCC nominee supports applying
all of Title II to the Internet, but Rosenworcel would
not commit to closing the docket, while Pai’s answer
was short and sweet.

Following are excerpts from their answers:

Pai: “If I am fortunate to be confirmed, I would support
closing the FCC’s June 17 notice of inquiry.”

Rosenworcel: “I do not believe all the requirements
of Title II of the Communications Act should apply to
all new services.

“Regulations designed for the era of basic telephony
are not uniformly appropriate for the technologies
and services of the digital age. At the same time, I believe
it is important to recognize that there are values
in the Communications Act that endure, including the
importance of public safety, universal service, competition
and consumer protection.

“Communications technology changes at a fast pace.
This, on occasion, puts the FCC in the difficult position
of identifying where services fit best in the existing regulatory
framework. It is not an easy task, and is best approached
with humility. If confirmed, my deliberations
would be governed by the statute, available precedent and
a survey of the record.

“In light of this, I believe that the choice to close the
docket should be considered in conjunction with the upcoming
decision from the United States Court of Appeals
for the District of Columbia Circuit, in Verizon v. FCC. I
also recognize that the Congress ultimately has the authority
to legislate in this area, and it is the duty of the FCC
to faithfully implement any such legislation.”

FCC chairman Julius Genachowski, in his own written
response to a similar question posed by House Energy &
Commerce Committee chairman Fred Upton (R-Mich.)
last March, said that one of the reasons the docket containing
the Title II reclassifi cation option, as well as others,
remained open after the FCC chose another route for
justifying network-neutrality rules is because the process
would collect information that could be useful to Congress
and private industry for updating the Communications
Act, “as many in Congress and the private sector have
suggested is needed,” he said.

Legislators on both side of the aisle have said that they
need to update the Act since its 1996 rewrite was focused
more on traditional telecom than the broadband revolution
that ensued. But congressional Republicans and a
number of industry players are also concerned it is being
left open as a backstop means of establishing the FCC’s
regulatory authority over Internet access if the rules are
thrown out by the courts.

The legal challenges to the FCC’s network-neutrality
rules by Verizon Communications and public-interest
groups Media Access Project and Free Press have been
consolidated in the U.S. Court of Appeals for the D.C. Circuit,
which vacated the FCC’s smackdown of Comcast in
the BitTorrent peer-to-peer file-sharing case, saying the
commission had not sufficiently established its authority
over Comcast’s network-management practices. (Comcast
was sanctioned for blocking BitTorrent traffic.)

The FCC’s network-neutrality rules, which went into effect
last month, were an effort to clarify that authority.