Clyburn: Wheeler Title II Tracks With 2010 Preference

Raises Issues of Impact on Smaller Operators, Inclusion of Interconnection
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Federal Communications Commission commissioner Mignon Clyburn has signaled she likes the direction the Title II reclassification draft order is heading -- there is a vote on the order Feb. 26 -- but she also raised several flags, including one that has been waved vigorously by the American Cable Association with an assist from The National Cable & Telecommunication Association: Providing smaller operators some relief from the new regulations.

In a speech to the Federal Communications Bar Association last week, Clyburn said her office was not commenting on the 332-page draft ("including footnotes"). But she said she would take a few liberties with her practice of not commenting on pending proceedings.

Clyburn said agency chairman Tom Wheeler's proposal to use Title II with forbearance, to apply the new rules to mobile as well as fixed broadband, to ban paid prioritization and to prevent the specialized services exemption from becoming a loophole all tracked with what she would have preferred in the original 2010 rules.

"When the chairman announced his proposal upon circulation, I was pleased to hear how closely it aligned with my prior vision," Clyburn told the audience after initially saying she would not comment

"My office is still in discussions with the chairman’s office about the item, and I will not divulge those specifics," she said. "[B]ut what I will say, is that it is imperative that the order strikes the right balance, for consumers deserve and need strong Open Internet protections, and investors need clarity and certainty. And when I say investors here, I include investment in ISPs, edge providers, content creators, as well as those developers in garages and on stoops. Some have expressed concerns about allowing private rights of action in court, failing to consider the impact on smaller ISPs, that including interconnection goes too far or that the case-by-case approach does not go far enough, and that the new conduct rule may not be a strong as the previous unreasonable discrimination rule."

Clyburn said she would continue to listen and find the right balance.

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