FCC commissioner Robert McDowell told reporters April 23 in a press briefing that it is "a myth" that broadband net access services were once regulated as a Title II Telecommunications service, and that the agency would get overturned in court if it tried to classify it as such now.
That observation came in a press briefing with reporters at the FCC headquarters in Washington.
McDowell, who took issue in a Hill hearing with legislators suggestion that it would simply be reclassifying the service under Title II, pointed to a 1998 report to Congress from then Democratic FCC Chairman Bill Kennard that he said made it explicit that Internet services were not regulated telecom services, and had said that it could even be harmful to treat them as such.
He also pointed out that the cable modem order that ultimately resulted in cable service classification as a Title I information service was launched under Kennard.
McDowell touched on a number of subjects, including that he thought the FCC had ample authority to transition the universal service fund from telephone to broadband and free up spectrum for wireless even in the wake of the BitTorrent decision. Those are two key proposals in the national broadband plan.
But he said he thought the FCC would have a "big problem" with its proposed network neutrality rulemaking after the BitTorrent court ruling (that the commission had not justified regulating network management under Title I).
McDowell did say he would welcome clarification from Congress on the FCC's authority under Title I vs. Title II. But if the FCC tries to reclassify under Title II, he said he thought it would be rejected by the courts, saying there was no change in fact or law that would justify that reclassification. "That would start smelling to a court like arbitrary and capricious."
The concept of a new regulatory regime [for network neutrality] is in real legal trouble," he said.
Asked whether in the wake of the BitTorrent decision, ISPs would be able to intervene to shut down peer-to-peer uploads from subscribers, he said that would have to be looked at in an anti-trust context. "I think there are laws on the books right now that help prevent anti-competitive conduct. The word we really need to be used is 'anti-competitive' vs. discriminatory."
The FCC is looking to expand its four Internet openness guidelines with a specific antidiscrimination principle, but its authority to enforce its existing guidelines, much less a new one, has been called into question by the ruling.
The FCC is widely expected to try to reclassify broadband as a Title II service, which is subject to mandatory access provisions, and to do it sooner rather than later to clarify its authority to implement the national broadband plan as well as expand and codify its Internet guidelines.