Gap Remains Between Fans and Foes of FCC Reclassification

Sides wonder: Does it take Title II to tango?

By John Eggerton -- Broadcasting & Cable, 7/26/2010 12:01:00 AM

While leaders on both sides of the network neutrality debate continue to meet in private with Edward Lazarus, chief of staff to FCC Chairman Julius Genachowski, their public statements continue to place them at opposite ends of the spectrum when it comes to how—or even whether—the FCC should clarify its broadband regulatory authority.

According to documents fi led at the commission, those pushing for network neutrality regulations—including top execs from Google, Skype and the Open Internet Coalition, and representatives of telcos and cable’s chief lobbying group— are talking about a legislative “fix” to the Comcast/BitTorrent ruling. But you would hardly know it from their comments on the chairman’s third-way proposal to apply a handful of common-carrier guidelines to Internet transmissions, meant to clarify that the FCC can regulate Internet access and network management.

FCC sources have said that Genachowski is looking to an early fall decision on a declaratory ruling establishing his third-way proposal. As Republican Commissioner Meredith Attwell Baker told B&C last week, the chairman wants to do something “while the leaves are still on the trees.”

A directive from Congress that both camps can live with could potentially pass in that same time frame—the window between the August recess and Congress’ exodus to go get reelected— and would allow the FCC to get its authority clarified unambiguously. The majority of members of the House, for example, including more than 70 Democrats, have registered some unease about the third-way proposal.

For those keeping score at home, here’s a primer on where parties on both sides of the issue fall—and the gap (bordering on gulf) that remains between them, based on their FCC comments.

NCTA: No Way—The National Cable & Telecommunications Association, whose president, Kyle McSlarrow, is one of the FCC conferees on a legislative fix, remains adamant that the commission’s Title II solution is a non-starter. “The Commission has no legal authority to classify any part of broadband Internet access service as a common carrier offering,” the group says. Besides, it adds, “The Commission retains ancillary authority to meet legitimate policy objectives.”

Open Internet Coalition: Way—“We support the ‘third way’ approach outlined by Chairman Genachowski,” states the coalition, which includes Google, Free Press, Public Knowledge and a host of others. “The court’s decision makes uncertain the commission’s ability to implement several important parts of the National Broadband Plan, and threatens the ability of the commission to adopt rules to protect an open and neutral Internet.”

American Cable Association: Stop in the Name of the Law—The ACA goes NCTA one better. Its 900 or so small and midsize cable and telecom companies say the FCC shouldn’t be fast-tracking a Title II reclassification. The association further argues that the FCC can’t legally do it at all without first spelling out what regulations it will apply, and then giving operators a chance to weigh in on what a particular hardship they will be for smaller operators. That would require a rulemaking procedure. But the FCC, if it goes the Title II route, plans on simply declaring the new classification in effect.

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