Senators Should Realize Title II Can Help Them
Senators Should Realize Title II Can Help Them
Senators Should Realize Title II Can Help Them

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    Federal Communications Commission (FCC) Chairman Julius Genachowski goes before the Senate Commerce Committee tomorrow (Wed.) afternoon for a discussion of the National Broadband Plan.  It’s not hard to predict how the discussion will go.

    Some on the Committee will look askance at the Commission’s broadband plans.  They will see a plot to “regulate the Internet,” or to impose “burdensome” regulations on the poor, understaffed telephone and cable companies.  Neither of those accusations is true, of course.

    One hopes that others on the Committee will be more enlightened, and more attuned to the predicament in which their constituents will find themselves as a result of the decision by the U.S. Appeals Court for the D.C. Circuit on April 6.  That ruling found that the Commission exceeded its authority when it found that Comcast violated the Commission’s Open Internet principles.  The FCC relied in its Comcast ruling on its authority under the nebulous Title I of the Communications Act.  The FCC in 2005 had ruled that cable modem service should be classified there, and later ruled that telephone company digital services, like DSL, should be reclassified to Title I from the traditional Title II.

    As the Commission ruled in 2005 when it made the shift:  “Consistent with the Supreme Court’s opinion in NCTA v. Brand X, we determine that facilities-based wireline broadband Internet access service is an information service.  Facilities-based wireline broadband Internet access service providers are no longer required to separate out and offer the wireline broadband transmission component (i.e., transmission in excess of 200 kilobits per second (kbps) in at least one direction) of wireline broadband Internet access services as a stand-alone telecommunications service under Title II…”  My colleague Harold Feld has a more learned take on what is Title II and what isn’t.

    As FCC General Counsel Austin Schlick wrote in his blog, key parts of the plan are at risk, including the FCC’s authority over the Universal Service Fund, which keeps telephone rates down for rural subscribers through a subsidy administered by the FCC.  Senators from rural states, or state with many rural areas, should take note.

    In addition, noted telecommunications attorney Colleen Boothby told an FCC workshop earlier today (Tues.) that the Comcast ruling could also create another problem for the FCC.  At a workshop on information collection, Boothby noted that she represents big business customers who want to monitor performance of their telecommunications.  However, as much as she wanted to applaud the National Broadband Plan’s recommendations to collect more data, Boothby said she is “concerned that the Commission’s authority to do that, especially after the Comcast decision, may be compromised.  The Commission should think about moving to a Title II basis for collecting some of this information.”  (If you are following along in the video, it’s at 87:55 of the workshop.)

    Boothby makes an excellent point.  There are many, many aspects of telecommunications that will be affected by the Comcast ruling.  By putting Internet access, and broadband services generally, back under Title II, the Commission can bring some certainty and stability to those who depend on broadband service.  Consumers need protection.  The Commission needs information.  Public safety, broadband deployment and many other aspects of the new digital age are in the balance.  There is no need for burdensome rules, but there is a need to treat broadband like what it has become – a telecommunications service.