'Tech Elder' Berninger Seeks FCC Stay of Title II - Broadcasting & Cable

'Tech Elder' Berninger Seeks FCC Stay of Title II

Says his livelihood is threatened if rules take effect while court considers challenges
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VoIP pioneer Daniel Berninger has petitioned the FCC to stay its Title II reclassification decision until a federal appeals court, likely the D.C. circuit, hears various appeals of that open Internet order. Making an argument for what he calls irreparable harm to entrepreneurship (irreparable harm is one of the threshold issues for a stay), Berninger says the FCC decision will keep him from earning a living and strand his investment in previously unregulated services with no chance of recovering it.

He also makes a case for why a stay would not harm others, why it is in the public interest and why a challenge of the rules is likely to succeed on the merits. Berninger says he will seek a court stay if the FCC does not respond by early next month.

Berninger has been leading a group of self-described "tech elders," including broadband video pioneer Mark Cuban, who are opposed to Title II reclassification of Internet access as a common carrier service, which the FCC adopted Feb. 26 on a pure party line vote with strong dissents from the Republicans.

Berninger said Title II reclassification threatens his livelihood and causes "irreparable harm to my career as an architect of new communications services if allowed to take effect pending judicial review."

The rules will take affect mid-June (60 days after their April 13 publication date in the Federal Register).

Among the issues Berninger has is with the order's ban on paid prioritization, which he says keeps from offering HD voice because "latency, jitter, and packet loss in the transmission of a communications will threaten voice quality and destroy the value proposition of an HD service."

Berninger told the FCC that while he agreed there was a need to defend the Internet from would-be gatekeepers, he said the primary gatekeeper risk came from the commission itself and its "command and control" regulation.

"My arguments owe to the same gatekeeper anxieties driving everyone else," Berninger told B&C/Multi. "The difference is 20 years of direct experience sufficient to recognize Title II/government dysfunction as the primary gatekeeper threat."

That experience includes helping create Vonage and working on the first VoIP teams at AT&T and NASA, Berninger told the FCC. He is currently pushing for the transition to all-IP networks and HD voice.

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