FCC Chairman Kevin Martin says he has concerns about the FCC's power to trump earlier court decisions regarding its rules, a power that allowed it to open the can of worms called network neutrality.
The Supreme Court affirmed that power in the Brand X decision. The FCC had reclassified cable modem service as an information service, subject to less strict regulation than telecommunications services.
A federal appeals court vacated that FCC decision, relying on its earlier ruling that cable was a telecommunications service subject to mandatory oepn access provisions. But the Supreme Court reversed that decision, saying the FCC was right the first time and that the agencies judgment should be deferred to even if it is contrary to a prior court ruling.
It was that decision, and the FCC's subsequent ruling that telco's Internet service was also subject to less strict FCC oversight, that freed cable and telcos from having to carry unaffiliated Internet service providers and gave rise to the whole network neutrality debate.
While Martin told an American Bar Association Administrative Law Conferrence crowd in Washington Thursday that the ends of advancing broadband was the right policy outcome, he had concerns about the means and the "regulatory deference" showed by the high court.
"Having the ability to adopt a less burdensome regulatory scheme for broadband services was critical to the Commission from a policy perspective," he said, "But I note that I agree with some of the concerns about the breadth of discretion available to our, or any administrative agency, as a result of this decision."
Martin made a pitch for deregulation, saying the commission should remove regulations werever possible fit they stand in the way of a level playing field for competing technological platforms. Still, he said, " also believe we shoudl be cautious of providing any regulatory agency with too much discretion."