ACA To FCC: Reclassifying Broadband Without NPRM Violates Law

Publish date:
Updated on

The American Cable Association went to the Federal Communications Commission in person (actually "persons") this week to advise them that aside from the policy problems in reclassifying broadband transmissions as a Title II common carrier service, it would be violating the law to do so -- at least as presently proposed.

Because the agency is changing the classification of a service under an existing rule, and not changing the rule, FCC chairman Julius Genachowski and general counsel Austin Schlick have argued that it can be done in a declaratory ruling rather than through the rulemaking process.

But ACA has argued, as its representatives did most recently in a meeting with Schlick and other FCC attorneys according to a copy of the ex parte disclosure, that Title II would impose new regulatory burdens and paperwork requirements on its small and medium-sized cable/telco operator constituency.

The FCC issued a notice of inquiry collecting comment on various proposals, including the chairman's so-called "third way" approach of only applying a few Titel II regs and forbearing (not applying) the rest, applying all of Title II, and leaving it under Title I. That regime was called into question by the federal court ruling that the FCC did not properly identify its authority for sanctioning Comcast for blocking peer-to-peer file uploads. Title II would be a way to clarify that and other authority.

But ACA said an inquiry does not cut it.

"The Commission cannot lawfully proceed directly from the NOI to a declaratory ruling that alters the status quo by imposing new regulatory and legal obligations on providers. Rather, the Commission must first issue a notice of proposed rulemaking and publish that notice in the Federal Register, two steps that the Commission has failed to take in this case."

Otherwise, said ACA, the FCC would be violating the Administrative Procedures Act and the REgulatory Flexibility Act.

If the FCC does go the Title II route--stakeholders, though not ACA, are trying to come up with compromise legislative language that would clarify the FCC's Internet access authority--ACA wants says the commission must either "conduct a rulemaking proceeding prior to changing the regulatory status of broadband Internet service, and/or stay the effectiveness of any reclassification (or reclassification and forbearance) decision until it can complete the rulemaking proceedings that would be required for implementation of and compliance with its decision."

It is unclear when, or even whether, the FCC will proceed with Title II reclassifiation. It has encouraged the stakeholders in their effort to find common ground, and recently cited agreement on most issues save for managed services and applying openness guidelines to wireless broadband.

But during a recent speech in Washington, Genachowski said in order to continue to promote innovation, the FCC needed an "enforceable framework to preserve the free and open Internet."