FCC Takes It On the Chin

Effort to reclassify broadband element hits major roadblocks

By John Eggerton -- Broadcasting & Cable, 5/31/2010 12:01:00 AM

The momentum in the network neutrality debate seems to be shifting in the direction of cable and phonecompany Internet service providers, which are pushing a more deliberative legislative response over the FCC’s plan of relatively swift action in reclassifi cation of net neutrality.

The FCC earned some applause last month from network neutrality fans after the commission outlined its reclassification plan. But recent letters to Julius Genachowski from both Republicans and Democrats made it clear that many in Congress would prefer to see the chairman back off the issue and leave the driving to them.

At presstime, the chairman was preparing to circulate to the other commissioners a notice of inquiry and notice of proposed forbearance implementing Title II reclassification that would be up for a vote at the June meeting—if it was not voted before that.

A Washington Post editorial slamming reclassification came last week on the heels of a call from top Democrats to launch a rewrite of the Communications Act, which is essentially the blueprint for overarching communications regulation.

Genachowski maintains that reclassifying the transmission element of broadband under a few select provisions of common carrier regulations is necessary to ensure that the commission has the authority to implement elements of the National Broadband Plan, such as privacy protections, and subsidize broadband deployment via the Universal Service Fund.

But legislators in rather prominent numbers—whether motivated by ISP lobbying muscle, as media watchdog Free Press suggests, or not—are trying to put the brakes on that effort.

“The letters are a pretty clear message that this is Congress’ prerogative,” said Scott Cleland, chairman of NetCompetition. org, an industry group that advocates marketplace self-regulation.

Seventy-three House Democrats and 37 Republicans signed letters to the FCC last week, stating that reclassification would hurt jobs and investment. “We cannot expect broadband providers to continue investing tens of billions of dollars a year into their networks when they don’t know how much ability they will have to manage and protect that investment,” said Rep. Gene Green (D-Texas) in releasing his letter to the media.

On the same day those letters were released, the heads of the FCC’s oversight committees and subcommittees announced the need to start revising the Communications Act, which last received a major sprucing in 1996.

Gigi Sohn, president of Public Knowledge, a public interest group that supports net neutrality, complimented the FCC’s efforts to shape policy. “The FCC has the authority to carry out its plan to set some rules of the road for the Internet, protecting consumers and encouraging innovation and economic activity online,” she said.

But the Washington Post editorial gave no quarter to groups like Free Press and Public Knowledge. The Post, which conceded it has cable and broadband interests that could be affected by the decision, called Title II reclassification unacceptable and said suggestions that ISPs would fill the regulatory void with broadband mischief was “nonsense.”

“The FCC’s Title II reclassification approach was a workaround in the absence of a clear mandate from Congress,” added Sanford Bernstein analyst Craig Moffett. “The fact that Congress is now promising to explicitly express its will makes it more difficult for the FCC to proceed with reclassification.” Cleland seconds that: “There is a clear majority in the House against Title II. That’s the message.”

E-mail comments to jeggerton@nbmedia.com and follow him on Twitter: @eggerton