Add John Dingell (D-Mich.) to the list of legislators cautioning the Federal Communications Commission about reclassifying broadband as a Title II service.
Dingell, former chairman of the Energy & Commerce Commttee, sent a letter to FCC chairman Julius Genachowski on May 27 saying that he had "strong reservations about the course the commission is presently taking with respect to the regulation of broadband access services."
Dingell, the longest serving representative, suggested that he had the institutional memory to weigh in on what Congress meant the FCC's regulatory authority over the Internet to be. "I have arrived at this conclusion both as a supporter of the principle of network neutrality and as one who remembers what the Congress intended when it created the distinction between 'telecommunications services' and 'information services' in the 1996 Act.
Dingell said the FCC's current plan is "fraught with risk," including getting overturned by the courts and deterring past and future investment.
He pointed out that the FCC is basing its switch from the earlier Title I-only classification pushed by former chairmen Bill Kennard (Democrat) and Michael Powell (Republican) on the three-judge dissent in the Brand X Supreme Court case, and asked whether he has any evidence any of the six in the majority were ready to switch and support Title II.
FCC general counsel Austin Schlick has said that what the majority supported was not Title II per se, but the agency's authority to classify it as such and by extension its expertise and authority to change that classification based on new facts and policy.
But Dingell, citing a dozen years in which no legislation has been introduced, much less passed, to change the FCC's interpretation of its authority, says it would be better to work with Congress to secure the needed authority rather than "following a tortured legal path premised on a minority opinion written by Justice Antonin Scalia [who wrote the dissent in Brand X]."
Dingell says the various suggestions of Congressional action, including a rewrite of the Communications Act and possible short-term legislation to clarify broadband regulatory authority would be an inherently less risky route.
"I encourage the commission to give serious consideration to abandoning the Title II classification effort." he said.
The FCC Thursday announced its plan to launch a combined notice of inquiry and forbearance proposal as part of the chairman's "third way" plan to apply select Title II common carrier regulations to broadband transmissions to shore up its ability to regulate network openness and transparency and implement the national broadband plan.
It will consider a range of options, including leaving broadband under Title I information services regulations and applying all Title II regulations, but the chairman has staked his claim to the "third way" compromise between the two.
Last week saw a host of Democrats join Republicans in questioning that route.