FCC's O'Rielly: Title II Forbearance Is 'Fauxbearance'

Says Agency Plans to Enforce a Dozen Provisions

Federal Communications Commission commissioner Michael O'Rielly has a new term for what he suggests is the hollow claim that agency chairman Tom Wheeler's network-neutrality order includes broad forbearance (non-application) from Title II common-carrier regs: "Fauxbearance."

He said he felt compelled to respond. His comments followed a press conference earlier in the day by fellow Republican commissioner Ajit Pai taking aim at the order's forbearance, particularly the suggestion that it would include rate regulation, which Pai said is flatly false.

"The FCC fact sheet clearly states that the item leaves in place more than a dozen provisions that are central to common-carrier regulation," O'Rielly in a statement. "With regulations ranging from rates to privacy to pole attachments copied and pasted onto broadband service, most of Title II will apply right out of the box, with more to come later. Indeed, sections 201 and 202, by themselves, are so broad in scope that they could easily be used as a means to backfill all of the 'fauxbearance' provided from other provisions."

O'Rielly shares Pai's concern about the order's inclusion of interconnections and the possibility the FCC will use that authority to dictate the "physical connections" of their networks, including demanding interconnections. "Nowhere in the fact sheet does the FCC disavow its intent to do so, so I must consider that it is a real possibility," he said.

The FCC is scheduled to vote Feb. 26 on the chairman's proposal. Pai has already signaled he will dissent. O'Rielly will almost certainly follow suit.