FCC Commissioner Robert McDowell told reporters Friday
(April 23) in a press briefing that it is "a myth" that broadband net
access services were once regulated as a Title II Telecommunications service,
and that the FCC would get overturned in court if it tried to classify it as
That observation came in a press briefing with reporters at
the FCC headquarters in Washington.
McDowell, who took issue in a Hill hearing with legislators
suggestion that it would simply be reclassifying the service under Title II,
pointed to a 1998 report to Congress from then Democratic FCC Chairman Bill
Kennard that he said made it explicit that Internet services were not regulated
telecom services, and had said that it could even be harmful to treat them as
He also pointed out that the cable modem order that
ultimately resulted in cable service classification as a Title I information
service was launched under Kennard.
McDowell touched on a number of subjects, including that he
thought the FCC had ample authority to transition the universal service fund
from telephone to broadband and free up spectrum for wireless even in the wake
of the BitTorrent decision. Those are two key proposals in the national
But he said he thought the FCC would have a "big
problem" with its proposed network neutrality rulemaking after the
BitTorrent court ruling (that the commission had not justified regulating
network management under Title I).
McDowell did say he would welcome clarification from
Congress on the FCC's authority under Title I vs. Title II. But if the FCC tries to reclassify under
Title II, he said he thought it would be rejected by the courts, saying there
was no change in fact or law that would justify that reclassification.
"That would start smelling to a court like arbitrary and capricious."
The concept of a new regulatory regime [for network
neutrality] is in real legal trouble," he said.
Asked whether in the wake of the BitTorrent decision, ISPs
would be able to intervene to shut down peer-to-peer uploads from subscribers,
he said that would have to be looked at in an anti-trust context. "I think
there are laws on the books right now that help prevent anti-competitive
conduct. The word we really need to be used is 'anti-competitive' vs.
The FCC is looking to expand its four Internet openness
guidelines with a specific antidiscrimination principle, but its authority to
enforce its existing guidelines, much less a new one, has been called into
question by the ruling.
The FCC is widely expected to try to reclassify broadband as
a Title II service, which is subject to mandatory access provisions, and to do
it sooner rather than later to clarify its authority to implement the national
broadband plan as well as expand and codify its Internet guidelines.