A pair of powerful legislators have advised the FCC not to
rule out Title II classification of broadband.
In the wake of reports FCC Chairman Julius Genachowski may
be leaning toward not reclassifying broadband as a Title II common carrier
service subject to access regulations, the chairs of the two key congressional
committees overseeing the commission want to make sure that option is not off
In a letter to the chairman Wednesday (May 5), Senate
Commerce Committee Chairman Jay Rockefeller (D-W.Va.) and House Energy &
Commerce Committee Chairman Henry Waxman (D-Calif.) said "the commission
should consider all viable options," to clarify its regulatory authority
over network management in the wake of the BitTorrent court decision
questioning that authority.
"This includes a change in classification, provided
that doing so entails a light regulatory touch, with appropriate use of
forbearance authority," the legislators said.
The pair are concerned both about the FCC's proposed
expansion and codification of network neutrality principles and its ability to
implement key elements of the national broadband plan.
"We want the agency to use all of its existing authority to
protect consumers and pursue the broad objectives of the National Broadband
Plan," they wrote.
But they added a caveat that the FCC should take a "light" regulatory touch in using that Title II authority, including exercising "appropriate use of forbearance authority," which allows it to essentially not apply some elements of Title II.
They suggest that reclassification could be a near-term
solution, though it would still likely take many months and would be almost
certainly challenged in court. In the long-term, both said they were willing to
write laws creating a new regulatory framework.
The federal appeals court in D.C. last month held the FCC
had not justified its authority to regulate Comcast's network management/impeding
of BitTorrent file uploads.
"Chairman Waxman and Chairman Rockefeller
are absolutely correct in their advice that the Federal Communications
Commission should use all viable options including a change in
classification with a light regulatory touch to protect consumers and advance
the goals of the National Broadband Plan," said Public Knowledge President Gigi
Sohn. "This letter makes clear that Congressional leadership considers
reclassification as an accepted option to be part of any Commission
consideration of broadband authority."