Top FCC Lawyer Looks Ahead to Rocky Road for Broadband Plan

WASHINGTON — The top attorney at the Federal Communications Commission (FCC) has made it clear that the agency isn’t going to wait for Congress to act before it attempts to clarify its authority over the broadband services sector following a recent legal setback.

FCC General Counsel Austin Schlick said on Tuesday that word from congressional committee leaders that they plan to begin overhauling the Communications Act to put the agency on more solid footing regarding ISPs won’t deter its own work on the issue.

Schlick cited a letter that two of those same lawmakers had sent earlier this month to FCC Chairman Julius Genachowski, urging the commission “to use all of its existing authority” in the Internet services industry to protect consumers and achieve the goals laid out in the national broadband plan delivered to Congress in March.

“We take that letter seriously and think it is appropriate for the commission to be asking these questions,” Schlick said at an event here at the New America Foundation, a Washington think tank.

Those questions, which have taken center stage as the hot-button technology policy debate in Washington, will formally appear when the FCC opens a notice of inquiry later this year asking for comments on reclassifying broadband transport as a so-called Title II service under communications law.

That arcane designation assumed an outsized importance after a federal appeals court ruled that the FCC lacked the authority to issue regulatory mandates under the current designation as a Title I service, upholding Comcast’s appeal of the commission’s 2008 order punishing it for secretly blocking peer-to-peer traffic on its data network.

As a result, Genachowski announced plans to move toward what he described as a third-way approach that would reclassify broadband as a regulated service, but enact meaningful restraints to ensure that ISPs aren’t subject to all of the odious rules that were put in place to oversee monopoly-era phone services.

The backlash has been, in a word, vocal.

“I think it has been very clear since the chairman announced his third way suggestion that there will be extremely strong opposition to any change to the current regime from segments of the industry,” Schlick said.

At the same time, he promised that the FCC would evaluate all the comments it receives, stressing that the commission is not embarking on the proceeding with a prescribed outcome, and that any oversight over the ISP sector will be administered with a “light regulatory touch.

“You cannot take for granted that the commission will end up in any particular place,” Schlick said. “Internet access is not a service that we want to regulate as a traditional telephone service.”

The debate over broadband reclassification stemmed from the Comcast decision, which itself turned on a fairly narrow set of company practices that the FCC decided were harmful to consumers.

Many lawmakers and industry opponents see the reclassification debate as a back door to the same net neutrality rules that they have been fighting for years.

“The commission has wrapped this debate in net neutrality,” Chris Guttman-McCabe, vice president for regulatory affairs at the CTIA, the trade association representing the wireless industry, said in a panel discussion following Schlick’s remarks.

But Schlick had argued that much larger issues are in play. If the FCC leaves broadband under its current legal classification as an information service, it will be on uncertain ground if it tries to pursue many of the recommendations in the broadband plan.

Chief among those is the goal of shifting the Universal Service Fund, the federal subsidy for telephone service, to fund broadband service in rural and low-income parts of the country.

“We have these recommendations, and it turns out that under the Comcast decision, as well as under the language of the Universal Service program, the information services classification that was found wanting in the Comcast case also prevents us from implementing many of these core objectives for innovation in the broadband plan,” Schlick said.

“That [ruling] changed the understanding that the commission had always understood, which was that we could adopt the deregulatory approach and nevertheless come in when needed,” he added.

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

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