Comcast Ruling Casts Long Shadow Over Senate Broadband Hearing

WASHINGTON — Appearing before a Senate committee Wednesday afternoon, Federal Communications Commission Chairman Julius Genachowski did his best to steer pointed questions about a court decision striking down the agency’s order in a high-profile net neutrality case back to his larger broadband agenda. But that’s what the senators wanted to talk about.

For the better part of today’s hearing, whose nominal focus was the national broadband plan that the FCC delivered to Congress last month, the lawmakers grilled Genachowski about the commission’s authority to enact net neutrality rules, and, more broadly, where the court ruling left the commission regarding other parts of its broadband program.

Genachowski didn’t allow much.

“Notwithstanding the decision last week in the Comcast case, I am confident that the commission has the authority it needs to implement the broadband plan,” Genachowski said, assuring the panel that the commission’s legal team is hard at work to ensure that the FCC takes its next steps on a “solid legal foundation,” a phrase he uttered at least four times throughout the hearing.

The court ruling in question, the backdrop to much of today’s proceeding, held that the FCC overstepped its authority in 2008 when it voted to punish Comcast for secretively degrading peer-to-peer traffic on its network.

That ruling touched off a wave of speculation about the FCC’s next steps, with deregulatory advocates declaring it the death knell for the commission’s authority over the Internet, while left-leaning consumer advocates urging it to reclassify broadband as a regulated telecommunications service, a move that would clarify its authority but almost certainly prompt a legal challenge.

Republicans on the commerce committee had the most pointed words for Genachowski at today’s hearing, urging him to resist calls to reclassify broadband as a so-called Title II service, as one Democratic commissioner at the FCC has already recommended.

“I think you’ve been handed your hat in your hand by the Comcast case,” said Mike Johanns (R-Neb.) “It’s just a situation where Congress, I believe, has not given you the power you’re trying to assert.”

“This is where we debate policy. You’re not elected. No one voted for you,” he later added. “Comcast has said very clearly that you exceeded your authority. There just isn’t any way around that opinion.”

But Genachowski would not bite on the reclassification issue.

“We haven’t settled on a path forward,” he said. “I haven’t made any decisions yet. We’re evaluating the court’s decision.”

Some Democrats on the panel who viewed last week’s court ruling as a setback urged Genachowski to move as aggressively as his attorneys advise allowable in the wake of the decision.

“I want you to exercise the authority that you do have,” said Commerce Committee Chairman John Rockefeller (D-W.V.). “Comcast and others want to take it away. They love deregulation so much they can’t even express it.”

Genachowski did not directly answer questions about how he planned to move forward with the net neutrality proceeding the FCC initiated last October, independent of the broadband plan, saying only that he was consulting with the commission’s attorneys.

Rockefeller said he expected that Congress would ultimately have to intervene to codify the FCC’s authority in the broadband space in statute, and asked Genachowski on two occasions today to reach out to lawmakers if he felt the commission’s broadband agenda was hobbled by jurisdictional questions.

“If you need help, you come to us,” Rockefeller said.

Genachowski said that he felt the FCC already has the clear authority to execute on most of what’s in the broadband plan, though he admitted that last week’s decision called into question its ability to enact certain key recommendations, such as an overhaul of the Universal Service Fund, the federal telecom subsidy for telephone service for rural or low-income Americans, which the broadband plan recommends reallocating to fund Internet service.

If anything, today’s hearing set the stage for how contentious and partisan any effort to bolster the FCC’s authority would be.

Almost down the line, the statements and questions of the GOP members of the panel today championed the benefits of a light-touch regulatory approach concerning the Internet sector.

“The court’s decision in the Comcast case should be at least a warning flag to the FCC that it is a heavy hand that the commission does not have the authority from Congress to actually use, and that it overstepped its bounds,” said Kay Bailey Hutchison of Texas, the ranking Republican on the committee.

By contrast, some Democrats warned that without regulation, the situation could get out of hand.

“The free marketplace is a wonderful place,” Dorgan said. “But you need a referee in a striped shirt with a whistle to call the fouls.”

Such are the talking points of the net neutrality debate. Dorgan, who has announced that he will not seek reelection after his term expires this session, has an ally on the other side of the aisle in Republican Olympia Snowe of Maine. Snowe said today that they have been working to revise the net neutrality bill they introduced last session, but Dorgan admitted that no movement is likely to happen on the issue in this election-shortened year.

Kenneth Corbin is an associate editor at, the news service of, the network for technology professionals.

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