Background: Over the last couple of weeks, a number of high-powered parties, including FCC Comr. Robert McDowell, have written letters to Congress raising legal questions about the proposed regulatory reclassification of broadband service. Public Knowledge
sent its reply today. The letter is here.
The Federal Communications Commission (FCC) has all the legal authority it needs to reclassify broadband Internet access service from an information service, Public Knowledge (PK) today told House Energy and Commerce Committee Chairman Henry Waxman (D-CA).
In a 12-page letter, PK Legal Director Harold Feld wrote that the FCC had all the legal authority it needed, and that the FCC Chairman Julius Genachowski’s proposal to examine the legal classification of Internet access services as a Title II service was proper. An agency proceeding “to assess the appropriate response to a significant court case hardly constitutes an effort to ‘evade’ the Comcast decision,” Feld wrote. He noted that the U.S. Supreme Court has “already held that Congress has delegated authority to the FCC to classify broadband access as an information service or as a telecommunications service” in the Brand X case from 2005.
Claims by carriers that classifying broadband as a Title II service would transform Facebook, Netflix or Google into service providers “appear calculated solely for their political affect rather than from any basis in law or precedent,” because none of them “combine telecommunications and information processing in a single service,” Feld wrote. Unlike other cases in which the FCC’s jurisdiction was questioned, this instance is squarely within the FCC’s authority of “communication by wire or radio” as set out in the Communications Act,” Feld said. He argued that a recent U.S. Supreme Court case involving Fox also found that an agency doesn’t need to provide a more detailed explanation when it changes course than when it confronts an issue for the first time.
Feld also commented on the tone of the debate which has been waged in the media and blogosphere, noting “one may savor the irony of parties that employ terms like ‘nuclear option’ and ‘World War III’ chastising proponents of Title II as ‘alarmist.’”
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