Clarifying What I Would Do If I Were FCC Chair
Clarifying What I Would Do If I Were FCC Chair
Clarifying What I Would Do If I Were FCC Chair

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    ISPs should put the
    cork back in their champagne bottles. Public Knowledge still
    thinks Title II is the best way to reinstate the FCC’s authority over broadband
    Internet access, though other means of providing that authority would be acceptable

    This past Tuesday I appeared on a Free State Foundation
    panel entitled “If I were the FCC Chairman….” For 2 hours representatives from Verizon, Time
    Warner Cable and I had the opportunity to “live the dream,” and set out what we
    would do if we commanded that big office on the 8th floor for the
    next several years.  

    It is certainly hard for a
    reporter to condense 2 hours of non-stop opinionating and prognosticating into
    400 words; sometimes nuances get lost.  Such was the case with a Communications Daily story on
    the panel, which screamed “FCC
    Will Lose Open Internet Case, Should Not Go Back to Title II, Say TWC, Public
    Knowledge Officials.” Champagne
    bottles could be heard popping in big ISP’s offices all over Washington,

    Better put the cork back in the bottle folks, because the title
    misrepresents both what was said at the event and Public Knowledge’s

    Not surprisingly, I
    stated that one of my five priorities as FCC Chair would be to “[e]nsure
    that the agency has authority to protect consumers and competition with regard
    to broadband internet access, depending on the DC Circuit’s decision in the
    open Internet case.”  This, and
    comments from the other panelists, precipitated a question as to what we would
    do if the FCC were to lose Verizon’s legal challenge to the FCC’s open Internet

    My response was
    clear. I said that Title II of the
    Communications Act was the most legally defensible way to preserve the FCC’s
    authority over broadband Internet access, and that former Chairman Genachowski
    should have classified broadband Internet access as a “telecommunications
    service” under Title II when promulgating the open Internet rules, rather than
    trying to find the remaining threads of ancillary authority left to the agency
    under the DC Circuit’s Comcast

    I also reminded the audience that to the
    extent that Verizon is challenging the FCC’s authority, it puts not only the
    open Internet rules at risk, but all other
    rules the FCC might promulgate that affect broadband competition and consumer

    However, the Verizon case
    is now before the DC Circuit, and while I do believe the FCC has a pretty weak
    case, it has been significantly strengthened by Justice Scalia and the Supreme
    Court’s decision in Arlington County v.
    , which held that a court must give an agency discretion as to the
    agency’s determination of the scope of its own authority. As I said on the panel, had the Supreme
    Court gone the other way, it would have been “game, set, match” for Verizon and
    the Arlington decision “breathes life into the FCC’s case.”  

    Therefore, I said that if
    the FCC were to lose the DC Circuit case, as FCC Chair I would ask the Supreme
    Court to hear the case (that is, file a petition for certiorari). In
    the Arlington County decision, Justice Scalia used a hypothetical that was so
    similar to the Verizon case as to be scary. As a lawyer and head of an agency
    that was at risk of losing much of its ability to protect consumers and
    competition with regard to the communications system of the 21st
    century, I would be foolish not to exhaust my judicial options in light of the Arlington County decision.

    At the same time, I said
    that as Chair I would give Congress one brief (six-month) window to make sure
    the FCC had authority over broadband
    Internet access (not just network neutrality), and I welcomed my colleagues
    from the ISPs to join me in that endeavor.

    This was not an invitation to try and somehow jerry rig
    the FTC into becoming the overseer of communications regulation. If Congress was unable to
    accomplish that task, as Chair I would then have no choice but to classify
    broadband internet access as a telecommunications service. 

    So neither Public
    Knowledge nor I are giving up on Title II. We still think it is the soundest option for legal and
    policy reasons should Verizon ultimately prevail. But what is really most important from our perspective is ensuring
    that the FCC does not go the way of the Interstate Commerce Commission and
    become wholly irrelevant.
     And if that means a Title I solution or the creation of a new Title or
    section of the Communications Act, so be it.  

    NB: The Comm Daily story also
    said that “All three panelists denounced the CableCARD rules.”  But I “denounced” the rules because the
    FCC has failed to enforce them, not because I think, as TWC and Verizon do,
    that the “marketplace” is taking care of set top box competition. We think that the FCC should follow its
    own National Broadband Plan and adopt the Allvid solution. Many thanks to Comm Daily for its
    brief correction on this and the broadband authority discussion.