Clarifying What I Would Do If I Were FCC Chair

June 6, 2013 , ,

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.