'Tech Elder' Berninger Seeks FCC Stay of Title II

Says Rules Threaten His Livelihood, Investments

VoIP pioneer Daniel Berninger has petitioned the Federal Communications Commission to stay its Title II reclassification decision until a federal appeals court, likely the D.C. circuit, hears various appeals of that open Internet order. Making an argument for what he called irreparable harm to entrepreneurship (irreparable harm is one of the threshhold issues for a stay), Berninger said the FCC decision would keep him from earning a living and strand his investment in previously unregulated services with no chance of recovering it.

He also made a case for why a stay would not harm others, why it is in the public interest and why a challenge of the rules is likely to succeed on the merits. Berninger said he would seek a court stay if the FCC does not respond by early next month.

Berninger has been leading a group of self-described "tech elders," including broadband video pioneer Mark Cuban, who are opposed to Title II reclassification of Internet access as a common-carrier service; the FCC adopted the new Open Internet rules Feb. 26 on a purely party-line vote with strong dissents from the Republican commissioners.

Berninger said Title II reclassification threatens his livelihood and causes "irreparable harm to my career as an architect of new communications services if allowed to take effect pending judicial review."

The rules will go into effect mid-June (60 days after their April 13 publication date in the Federal Register).

Among the issues Berninger has with the order is its ban on paid prioritization, which he said would keep companies from offering HD voice because "latency, jitter and packet loss in the transmission of a communication will threaten voice quality and destroy the value proposition of an HD service."

Berninger told the FCC that while he agreed there was a need to defend the Internet from would-be gatekeepers, the primary gatekeeper risk came from the commission itself and its "command-and-control" regulation.

"My arguments owe to the same gatekeeper anxieties driving everyone else," Berninger told Multichannel News. "The difference is 20 years of direct experience sufficient to recognize Title II/government dysfunction as the primary gatekeeper threat."

That experience includes helping create Vonage and working on the first VOiP teams at AT&T and NASA, Berninger told the FCC. He is currently pushing for the transition to all-IP networks and HD voice.