Republicans Submit Formal Title II Dissents

General Counsel Salet Signals Final Release to Take Time

Ajit Pai and Michael O'Rielly, the two Republican commissioners at the Federal Communications Commission, have submitted their formal dissents to the Feb. 26 vote by the agency's three Democrats to reclassify Internet access as a telecommunications service under Title II common-carrier regulations.

Their submissions advance the process but do not provide a clear timeline for the release of the order.

Sources for both minority commissioners said they had turned the dissents in Monday (March 2), and now the ball is in the chairman's court.

A spokesperson for the chairman had no comment on when the final order would be released and sent to the Federal Register. The rules become effective 60 days after publication in the register.

FCC General Counsel John Salet wrote in in a blog post, "Once the vote on a commission order has been taken, some additional steps remain before the decision is final and ready for public release."

After the submission of those dissents, the order may have to be "clarified" to "address any significant argument made in statements," Salet said.

That's primarily to ensure the order is as challenge-proof in court as FCC lawyers can make it. "[T]he order itself must address any significant argument made in the statements – or risk being overturned in court for failing to address the issue," Salet explained in the post.

Additionally, as Salet also pointed out, the D.C. Circuit Court of Appeals has said it is the duty of an agency to "engage the arguments raised before it…. including the arguments of the agency's dissenting commissioners.” The D.C. circuit is the one that would be likely to hear the threatened court challenge to the Title II order.

After that "engagement," the commissioners who voted to approve the order must sign off on any edits for "clarifications" -- the minority do not get to sign off since they voted against it.

There will also be final proofs and edits before the order is circulated.

Salet did not suggest any timetable. "The goal, of course, is to release the final order as soon as possible," he blogged. "But speed is not the only – or even the upmost – goal. The rulemaking process of the FCC was designed by Congress, and is executed by the commission, to produce rules that will stand the test of judicial review – and of time."

Republican legislators pushed the chairman to release the draft of the order even before it was voted, saying that would be in the interests of transparency.