ACA to FCC: Reclassifying Broadband Without NPRM Violates Law

Says Comission's Title II inquiry doesn't cut it
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The American
Cable Association went to the FCC in person (actually "persons") this
week to advise them that aside from the policy problems in reclassifying
broadband transmissions as a Title II common
carrier service, it would be violating the law to do so, at least as
presently proposed.

Because the
FCC is changing the classification of a service under an existing rule,
and not changing the rule, FCC Chairman Julius Genachowski and General
Counsel Austin Schlick have argued that it
can be done in a declaratory ruling rather than through the rulemaking
process.

But ACA has
argued, as its representatives did most recently in a meeting
with Schlick and other FCC attorneys according to a copy of the ex parte
disclosure, that Title II would impose new regulatory
burdens and paperwork requirements on its small and medium-sized
cable/telco operator constituency.

The FCC
issued a notice of inquiry collecting comment on various proposals,
including the chairman's so-called "third way" approach of only applying
a few Titel II regs and forbearing (not applying)
the rest, applying all of Title II, and leaving it under Title I. That
regime was called into question by the federal court ruling that the FCC
did not properly identify its authority for sanctioning Comcast for
blocking peer-to-peer file uploads. Title II
would be a way to clarify that and other authority.

But ACA says an inquiry does not cut it.

"[T]he
Commission cannot lawfully proceed directly from the NOI to a
declaratory ruling that alters the status quo by imposing new regulatory
and legal obligations on providers. Rather, the Commission
must first issue a notice of proposed rulemaking and publish that
notice in the Federal Register, two steps that the Commission has failed
to take in this case."

Otherwise, says ACA, the FCC would be violating the Administrative Procedures Act and the REgulatory Flexibility Act.

If the FCC
does go the Title II route--stakeholders, though not ACA, are trying to
come up with compromise legislative language that would clarify the
FCC's Internet access authority--ACA wants says
the commission must either "conduct a rulemaking proceeding prior to
changing the regulatory status of broadband Internet service, and/or
stay the effectiveness of any reclassification (or reclassification and
forbearance) decision until it can complete the
rulemaking proceedings that would be required for implementation of and
compliance with its decision."

It is
unclear when, or even whether, the FCC will proceed with Title II
reclassifiation. It has encouraged the stakeholders in their effort to
find common ground, and recently cited agreement on most
issues save for managed services and applying openness guidelines to
wireless broadband.

But as
recently as a speech in Washington, Genachowski said to continue to
promote innovation, the FCC needed an "enforceable framework to preserve
the free and open Internet."

Related

ACA to FCC: Third Way Would Be big Burden

The American Cable Association says that reclassifying broadband as a Title II service will have immediate and significant economic impact on the small and mid-sized cable/telecom companies it represents.