Copps Supports Partial Reclassification of Broadband

Commissioner says FCC must avoid forbearance "binge"

By John Eggerton -- Broadcasting & Cable, 5/6/2010 5:42:44 PM

FCC Commissioner Michael Copps said Thursday (May 6) he supported the partial reclassification of broadband service proposed by FCC Chairman Julius Genachowski, but said the FCC would need to move swiftly and avoid a forbearance "binge."

The two Republican commissioners slammed the proposal Thursday, while Democrat Mignon Clyburn, who has said before she supported clarifying the FCC's broadband regulatory authority, was still preparing a statement at press time, but the chairman is expected to get three votes for what he has suggested is a middle-ground proposal that protects investment and innovation and consumers and the Republicans say is an unecessary overreach that will chill innovation and heat up the path to the nearest appeals court--the D.C. Circuit.

The FCC's legal team led by General Counsel Austin Schlick has proposed reclassifying the transmission element of broadband as a Title II telecommunications service, but only while forbearing (officially not applying) most of the Title II regs, except for the handful the FCC says allow it to prevent disciminatory access and promote broadband deployment.

"Frankly, I would have preferred plain and simple Title II reclassification through a declaratory ruling and limited, targeted forbearance-wiping the slate clean of all question marks," he said, but added that "the quicker we can bring some sense of surety and stability to the present confusion emanating from the Comcast court decision, the better off consumers-and industry, too-will be."

That will still likely be months given that the FCC will have to vote on an inquiry into the reclassification, then on the declaratory ruling (the FCC does not have to issue a Notice of Proposed Rulemaking since it won't be making any, just applying existing ones in a new way).

Copps said the move should be welcomed as a "first step" toward "bringing broadband back under the Title II framework where it belongs." FCC Chairman Julius Genachowski has not suggested there is a second step that would mean applying more of the Title to broadband, and in fact said narrowly tailoring the Title II provisions would be a way to avoid regulatory overreach. "It was a travesty to move it [from Title II to Title I] in the first place," said Copps. "and those decisions caused consumers, small businesses and the country enormous competitive disadvantage."

There has been a long-running debate over whether the FCC is returning broadband to a Title II regime, or, as the Republicans put it, crossing a regulatory Rubicon into new territory. Either way, the chairman appears set on bringing at least the transmission component of Internet access under a Title II Lite regime.