Federal Communications Commission Commissioner Meredith Attwell Baker called on the agency to immediately make public the chairman's draft of proposed network neutrality rules. A senior FCC official countered that the issue has been thoroughly vetted and it is time to "move forward."
The network neutrality proposal is to expand and codify open Internet guidelines using its existing authority under Title I information service regulations, though tied to other parts of the Communications Act.
In a speech to the Practising Law Institute's Telecommunications & Policy Regulation conference in Washington on Dec. 9, Baker, who opposes adopting the rules at the December meeting, said: "If this agency is to operate in the most transparent and inclusive manner, we should proactively put out a copy of our draft Net Neutrality rules for comment today. The comment cycle can be short, but putting some sunshine on what we are doing would inform our process."
She said that would be a way for the chairman to fulfill his pledge of openness and transparency.
So why doesn't Baker, whose office has a copy of the draft, make it public herself? By rule, the commissioners are not allow to make non-public information public, said a Baker staffer. That has to come from the chairman or by a commission vote.
If the chairman took her up on the offer and did make it public Thursday evening, it could mean some plan changes for communications attorneys and regulators, many of whom are scheduled to spend the evening toasting and roasting him at the annual Federal Communications Bar Association Chairman's Dinner in Washington in association with the conference.
Baker had plenty of public comment on the draft order. She said that to vote the rule proposal Dec. 21, as the chairman has planned, goes against the will of the courts and Congress. It is rushing something that did not need to be done in December at any rate, which she suggested was just "working through the holidays on scoring partisan political points."
"We should not set out our own aggressive vision and force Congress and the courts to stop us," Baker said in an extensive criticism of the order, the FCC process that produced it, and the possible negative consequences of its enactment.
She said the FCC was planning to legislate, rather than regulate. By taking the item further than network neutrality legislation drafted by Rep. Henry Waxman (D-Calif.), she said, "we are doing what Congress could not, or would not do." She said the order would essentially by implementing regulations for a statute that was never enacted. "By doing it ourselves, there are no jurisdictional limits. We delegate to ourselves an unbounded regulatory power to adopt policies to promote a particular vision for the Internet. Congress is right to ask us to stand down," she said.
Some House Repulican leaders have asked the chairman to back off the vote, most notably incoming Energy & Commerce Committee Chairman Fred Upton (D-Mich.), who has vowed to try and block the effort whether or not the FCC has congressional authority to adopt the new regulations. Baker cited Upton's warning as one of the signals the FCC should not proceed with the vote.
Baker also took issue with the perception that the chairman's proposal is a compromise. That characterization stems from the fact that it was produced after consultation with industry and public interest players. But she said that to suggest it is a middle ground represents "spin."
"It is the equivalent of offering a five-year-old the choice between broccoli and brussels sprouts, and concluding the kid really likes broccoli," she said. "Selecting between bad and worse options is not tantamount to an actual choice."
Industry reaction was essentially supportive of the chairman's proposal, though it might be better described as lack of outright opposition, but with the caveat that they didn't really think the regulations were needed.
Baker also called on the chairman to close the Title II docket. Senior FCC officials have said that docket will not be closed, or Title II foreclosed, by the net neutrality vote, only that the FCC is not planning to reclassify as a way to justify the new regulations. That would leave the possibility of revisiting reclassification if it ran into trouble with a Title I defense.
"If we decide to move forward with Net Neutrality under Title I, we must close the Title II docket at the same time and provide certainty that we will maintain a pro-growth, pro-investment approach to broadband under Title I. Keeping open the Title II docket-and the associated regulatory uncertainty-would undercut significantly the market certainty the commission now seeks," she said.
Baker said her Christmas list would include four things -- "the commission putting the draft Net Neutrality rules out for comment; closing the Title II docket to allow true compromise solutions; working with Congress proactively on solutions; and shifting our efforts to focus on a bipartisan pro-jobs agenda."
That was in contrast with the list of fellow commissioner Mignon Clyburn, who spoke earlier at the conference. Clyburn said her list included that consensus would be reached on the Internet order. That did not appear likely given both Baker and Republican Robert McDowell's strong opposition to it, though the consensus Clyburn may be looking for is among Democrats, whose three votes would be enough for Sen. John Kerry (D-Mass.), who asked Clyburn and Democratic Commissioner Michael Copps Thursday to support the item, saying it was clear the Republicans would not.
"We are hard pressed to think of an issue that has been more publicly debated and dissected than preserving a free and open Internet," said a senior FCC official. "Over the last 14 months, we've had hundreds of meetings, held numerous public workshops, received more than 100,000 comments, and even released a text of the proposed rules. The draft order was circulated to all of the Commissioners a full three weeks in advance of the vote, a courtesy that Chairman Genachowski has consistently extended.
"So, we are particularly perplexed by Commissioner Baker's call for yet more time given that it took her less than 24 hours to read the order and publicly declare her flat opposition to the proposal. We are gratified by the broad support this proposal continues to receive -- including from leading Internet and technology companies, founders and investors, consumer and public interest groups, unions, civil rights organizations, and broadband providers. It's time to move forward."