FCC's McDowell, Baker to Give Partial Support on Net Neutrality Notice

Republican commissioners will concur on full, transparent process but will dissent on factual, legal basis for proposed rulemaking
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Look for the FCC Republican commissioners to support, at least in part, Chairman Julius Genachowski's network neutrality notice of proposed rulemaking (NPRM) at the commission's Oct 22 meeting.

Sources say Robert McDowell and Meredith Attwell Baker will vote to concur on a full and transparent process with plenty of opportunity for comment; however, they will dissent from the factual and legal basis the document uses to justify proposing the rules. That is different from supporting the underlying argument for codifying network neutrality rules--both remain unconvinced--but at least it would be a unanimous vote to move the debate to the next level. The chairman already has the support of the other two Democrats on the panel.

The proposal was said to be looking better--less presumptively regulatory--to the Republican side after style and tone edits, including removing the "tentative conclusion" language that had been in the original proposal, according to multiple sources. That means, for instance, that the item no longer "tentatively concludes" that network neutrality rules should apply to wireless, though that could well be the conclusion after a lengthy comment and reply comment period. The chairman has said he thinks it is important to extend the rules to mobile, which he says, in turn, will be key to broadband's future.

Also look for the chairman to get shout-outs from his "collegial opposition" Thursday for working productively to improve the document. That comes after initial concern on the Republican side that they did not get sufficient notice or input on the chairman's plans to introduce the important proposal, according to numerous sources.

"We have really spent a lot of time with the chairman's office," Commissioner Baker told B&C late Wednesday, Oct. 21. "I think the basis of this document and the tenor of this document is going to allow us to move forward," she said. "They have really done a great job, and they have really made great progress on it."

A source said Baker would have voted no on the original document, and didn't even see a route to supporting it. Baker said it would not be appropriate to comment on the subject of the changes or her vote, but a source said removing the tentative conclusions was a key tone change.

Baker said she was still not convinced that the FCC needs network neutrality rules, "but the chairman has worked hard with us to make this document something that at least moves foward the debate so we can have a healthy one," she said.

Sources familiar with McDowell's thinking say he, too, gives props to the chairman for an improved document and the process that achieved it, including praising the fact that the proposed rulemaking actually includes proposed rules, though he still is unconvinced they are needed. Some past NPRM's under previous management were heavy on inquiry and light on actual proposals.

While the tone may have changed, the thrust of the rulemaking, announced by the chairman in a Brookings Institute speech a month ago, remains.

The FCC will propose to codify its existing four Internet openness principles as well as adding two new ones requiring ISPs to inform customers about network management techniques and preventing them from discriminating against content of applications, with a carve-out for reasonable network management public safety and homeland security. That codification is meant to remove any question of whether they are enforceable.

That question is currently the subject of a court case involving Comcast's network management/blocking of BitTorrent peer-to-peer file uploads.

There will be a lot of questions asked in the proposal, although a source says that the document proposes that defining reasonable network management be arrived at on a case-by-case basis, which is how the commission has said it would try to enforce the guidelines up to now.

The FCC will give the public and interested parties 70 days for comments and another 50 for replies. That means that nothing will be decided until mid-March of next year at the earliest. If, as one FCC source suggested, the commission also continues to fight Comcast's challenge to the BitTorrent decision, it could be even longer. Oral arguments in that case are not expected until January 2010, after which the court will have to decide the case, which can take months. The commission may want to wait for that decision before circulating a draft of the final order.

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