FCC Ponders Net Authority

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Washington — Federal Communications
Commission lawyers
are still trying to figure out
how to shore up the commission’s
authority to regulate the Internet,
but they were getting a lot of help
last week from both sides of the
net-neutrality debate.

The FCC will need to figure
something out quickly as it
launches the series of rulemakings
and inquiries to implement its National
Broadband Plan, elements
of which could be challenged
without that clearer authority, the
FCC acknowledged.

In a Senate Commerce Committee
hearing last week on the
National Broadband Plan, FCC
chairman Julius Genachowksi
repeatedly told legislators that he
still thought the agency had the
authority to implement the plan
and assure an open and accessible
Internet. Agency lawyers are
still vetting the implications of
the court decision overturning
its ruling that Comcast violated
the commission’s open Internet
guidelines, he said.

The chairman has two other
likely votes, both Democratic, for
the reclassification of broadband
if it comes to that. Commissioner
Michael Copps is squarely behind
it, and commissioner Mignon
Clyburn has backed finding new,
“legally sound rules of the road”
to preserve Internet openness.

While pressed for an answer by
numerous senators last week, the
chairman did not say whether he
supported classifying broadband
as a Title II telecommunications
service subject to open-access
regulations, rather than its current
classification as a more lightly regulated
information service.

The court said the commission
had not sufficiently justified the
ancillary authority it asserted to
enforce its openness principles
under Title I.

Sen. Mike Johanns (R-Neb.)
told Genachowski that Congress
“has not given you the power that
you are attempting to assert under
portions of this broadband
plan.” He said he was sending
that message to the courts.

Genachowski said later in the
hearing he did not agree that the
FCC does not have express authority to implement net neutrality
under Title I. He said the court
had found “a series of problems
with the process and reasoning
by the commission.” He assured
the committee that “we will not
do anything that is not supported
by counsel where we can’t make a
decision and go to court and say:
‘This is within our authority under
the statute.’”

Sen. Jay Rockefeller (D-W.Va.),
chairman of the committee,
pushed Genachowski and the
commission to “use all of its existing
authority to protect consumers
and pursue the broad objectives of
the broadband plan.” He also said
he would be ready to “rewrite the
law” if needed to give the FCC the
power it needs.

Sen. John Kerry (D-Mass.), the
communications subcommittee
chairman, spoke even more
passionately about the issue. In a
blog posting on both the Daily Kos
and Huffington Post Web sites, he
urged his readers in essence to get
out of their chairs, open the window
(dial the phone, actually)
and say they weren’t going to take
it anymore.

“You could make an enormous
difference if you take just a couple
of minutes right now, call your
senators and urge them to support
the president’s push for net
neutrality and a national broadband
plan,” he wrote, weighing in
squarely behind reclassification.

“The FCC could reclassify the
service and preserve its traditional
role. The telecom companies
are giving it everything
they’ve got to keep this from happening,
and if you don’t speak
up, they could win,” he said.

AT&T execs spent an hour with
reporters last Tuesday (April 13)
making the case for why the FCC
did not need to use Title II authority
over the net to implement
the plan, and arguing that to do
so would chill investment and
the broadband deployment that
the plan is supposed to be driving.
They advised that it would be
better for Congress to step in and
clarify just what the FCC’s statutory
authority was first.

Kerry was having none of it.
“The telecom companies try to say
that only Congress can pass a law
to make this better,” he said. “But
having suffered through a year of
record filibusters and procedural
hurdles to grind the process to a
halt, do you really think it’s a good
idea for Congress to try and do
this, when the FCC can have the
authority right now?”