CPUC Title II Comments On Hold

Initial Vote to Approve Submission Put On Hold After Vote Is Rescinded

Turns out the California Public Utilities Commission proposal to endorse Title II in comments at the FCC did not pass after all.

The item was first reported to have passed by a 3-2 vote Thursday (Sept. 11), but Commissioner Carla Peterman rescinded her vote and the 2-2 item was put on hold at her request.

A spokesperson was checking at press time on the status of the item and what the next step would be. The FCC's comment deadline is Sept. 15, but it will continue to accept comments beyond that.

There was some talk of an ex parte letter from the CPUC in place of the comments, said a source.

According to a copy of the draft memo from the CPUC's assistant general counsel, it advises that the CPUC file comments at the FCC in support of enhancing the transparency rule, which is still in effect, but of using Title II to reinstate prohibitions on anticompetitive paid prioritization.

The FCC is proposing to use a commercially reasonable standard for allowed discrimination, with a minimum guaranteed level of service, rooted in its Sec. 706 authority and mandate to promote advanced telecommunications. But the CPUC draft suggests that won't cut it.

"The commercially reasonable standard is inconsistent with an open Internet because it would allow ISPs to discriminate under an undefined and likely unenforceable standard," said the memo. "Accordingly, the CPUC would oppose FCC adoption of the proposed “commercially reasonable” standard, and argue instead adoption of the “no unreasonable discrimination” standard rooted in Title II."

CPUC's position, if it does eventually pass muster with the CPUC in the form of comments or an ex parte letter, would not be a big surprise. It was one of the parties who lodged a court challenge against the FCC's classification of cable modem service as a telecommunications service, rather than a Title II information service subject to common carrier open access mandates. That case was eventually settled in the FCC's favor in the Brand X Supreme Court decision.