Copps: Time To End 'Ancillary Authority Dance'

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Democratic Federal Communications Commission commissioner Michael Copps was clear Tuesday about what the agency should to do clarify its authority over the Internet: classify the broadband as a telecommunications service, which is subject to mandatory access provisions.

His Republican colleages, commissioners Robert McDowell and Meredith Attwell Baker, respectfully disagreed, with Baker saying flatly that she would oppose any attempt at reclassification..

Those positions came in response to a D.C. federal appeals court decision Tuesday throwing out the FCC's BitTorrent decision that had found Comcast's impeding of peer-to-peer file sharing a violation of its internet openness principles.

Comcast had argued the FCC had not justified its jurisdiction over network management, and the court agreed.

"Today's decision is not just a blow to the FCC-it's a blow to all Americans who rely on an open Internet that serves all comers without discrimination," said Copps in a statement. "Since 2002, I have warned about the dangers of moving the transmission component of broadband outside of the statutory framework that applies to telecommunications carriers. The only way the Commission can make lemonade out of this lemon of a decision is to do now what should have been done years ago: treat broadband as the telecommunications service that it is."

Copps said he was not criticizing the court, but the FCC for "the bad policy choices it has made," he said. It is time that we stop doing the "ancillary authority" dance and instead rely on the statute Congress gave us to stand on solid legal ground in safeguarding the benefits of the Internet for American consumers. We should straighten this broadband classification mess out before the first day of summer."

The Supreme Court, in the Brand X decision upholding the FCC's classification of broadband as an information service recognized that there was a telecommunications component to broadband, but deferred to a former commission's conclusion that it was inextricably tied to the information service element.

McDowell, who has warned against reclassification, including in a recent FCC oversight hearing on the Hill, said he was "pleased" that the court ruling makes clear that that "Title I of the Communications Act [which applies to information services] provides the FCC with no authority to regulate the network management practices of an Internet service provider. "

He added that he hoped the decision would lead to some marketplace certainty (the kind he has always argued leads to investment in the broadband service the commission is pushing in its national broadband plan), rather than "the unnecessary classification of broadband service as a monopoly phone service under Title II of the Act."

Joining McDowell was Republican Commissioner Meredith Attwell Baker, who said she, too, was pleased by the court decision, but would not be pleased if the FCC tried to reclassify broadband in order to regulate it.

"The D.C. Circuit's strong words today remind us that as an independent agency, we must always be constrained by the statute," she said, adding: " We stray from it at our peril." As to the network neutrality policy she said was at issue in the case. "I would oppose calls to use the court's decision as a pretext to reclassify broadband Internet access services under monopoly-era Title II regulation. "

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