Rockefeller, Waxman Tell FCC to Keep Title II On Table

Legislators' letter says commission should consider "all viable options"

By John Eggerton -- Broadcasting & Cable, 5/5/2010 11:18:00 AM

A pair of powerful legislators have advised the FCC not to rule out Title II classification of broadband.

In the wake of reports FCC Chairman Julius Genachowski may be leaning toward not reclassifying broadband as a Title II common carrier service subject to access regulations, the chairs of the two key congressional committees overseeing the commission want to make sure that option is not off the table.

In a letter to the chairman Wednesday (May 5), Senate Commerce Committee Chairman Jay Rockefeller (D-W.Va.) and House Energy & Commerce Committee Chairman Henry Waxman (D-Calif.) said "the commission should consider all viable options," to clarify its regulatory authority over network management in the wake of the BitTorrent court decision questioning that authority.

"This includes a change in classification, provided that doing so entails a light regulatory touch, with appropriate use of forbearance authority," the legislators said.

The pair are concerned both about the FCC's proposed expansion and codification of network neutrality principles and its ability to implement key elements of the national broadband plan.

"We want the agency to use all of its existing authority to protect consumers and pursue the broad objectives of the National Broadband Plan," they wrote. 

But they added a caveat that the FCC should take a "light" regulatory touch in using that Title II authority, including exercising "appropriate use of forbearance authority," which allows it to essentially not apply some elements of Title II.

They suggest that reclassification could be a near-term solution, though it would still likely take many months and would be almost certainly challenged in court. In the long-term, both said they were willing to write laws creating a new regulatory framework.

The federal appeals court in D.C. last month held the FCC had not justified its authority to regulate Comcast's network management/impeding of BitTorrent file uploads.

"Chairman Waxman and Chairman Rockefeller are absolutely correct in their advice that the Federal Communications Commission should use all viable options including a change in classification with a light regulatory touch to protect consumers and advance the goals of the National Broadband Plan," said Public Knowledge President Gigi Sohn. "This letter makes clear that Congressional leadership considers reclassification as an accepted option to be part of any Commission consideration of broadband authority."