Kerry, Other Ds, Defend FCC Going Ahead on Broadband Authority NOI.June 15, 2010
Dems on the Hill are waking up to round two on the fight over the future of broadband. Specifically, Senators Kerry (D-MA), Cantwell (D-WA), Udall (D-NM) and Wyden (D-OR) sent this letter to Senators Inouye (D-HI) and Cochran (R-MS) — the Chair and Ranking Member of the Senate Appropriation Committee — arguing that no one should use the appropriations process to prevent the Federal Communications Commission (FCC) from moving forward with its proposed Notice Of Inquiry (NOI) asking what to do for legal authority for the National Broadband Plan and to protect consumers now that the U.S. Appeals Court for the D.C. Circuit has gutted the FCC’s previous theory of authority. Here’s the money quote:
“Seeking public comment on all available approaches is a reasonable and responsible way to move forward and we should give it increased clarity and definition through the legislative process. Congress should not block its consideration. The Communication Act articulates and gives life to the idea that our communications networks should be open, accessible, ubiquitous, and affordable. Those values did not die with the invention of the Internet nor did the Commission’s responsibility to act on them.”
Emphasis added. (Our press release here).
Those new to Washington may wonder why this letter is even necessary. After all, don’t agencies have jobs and responsibilites? Those reading this post who went to law school may even recall some old textbook Admin stuff about how Congress delagtes authority to agencies (like the FCC) and agencies try to do their job, then every now and then Congress decides if they need to take any new action. But until Congress acts, agencies (such as the FCC) do their jobs.
That’s law. Now lets talk politics. Whenever someone likes the status quo, they devote a lot of energy into trying to keep people from acting. So when Democrats took over Congress in ’06, and wanted to do stuff like work on carbon emissions or network neutrality, industry folks were all “Oh, don’t worry your pretty little legislative heads about that! You have agencies that have power to act and have much more expertise than you could ever have. Let the expert agencies do their jobs!”
But then the Democrats won the White House in ’08 and — finally! — got agency heads appointed. So defenders of the status quo shifted from “Shame on you, Administrative Agencies, for trying to do anything while Congress is considering legislation! You should continue to sit on your little fannies until Congress passes a new law giving you more detailed instructions rather than relying on the laws you have now.”
We saw this recently with the Environmental Protection Agency and carbon emissions. The Congressional climate change bill stalled. So EPA acted under its existing statutes to make sure Americans have clean air and stuff. “Shocking!” cried Industry. “An appalling power grab,” agreed industry allies in Congress. “Just doing our actual firkin’ job you told us to do,” responded EPA: “And if you get your act together to provide more detailed guidance on climate change, we’ll be all set to do what you want. Until then, we do the job you told us to do with the tools we have.”
Which brings us back to the current fight over broadband. After the Comcast/BitTorrent case, spending some time pondering what to do, FCC Chairman Julius Genachowski concluded that if the FCC wanted to accomplish anything in the National Broadband Plan or have the ability to protect consumers if anything went wrong, he needed to look at the underlying basis for FCC authority and consider a new approach. That includes proposing “Title II-lite,” “Third Way,” whatever you want to call moving broadband out of the “Title I” ancillary services box and into the “Title II” telecommunications services box. Needless to say, the forces in favor of the status quo reacted predictably by fighting any action tooth and nail.
Now, since this is an important issue, the Chairs of the relevant Committees in Congress agreed that it would probably be a good idea to overhaul the entire Communications Act again to take into account the fact that broadband has gone from the promise of “advanced telecommunications capability” (as Section 706 of the 1996 Act calls it) to an actual reality that we want, as a national policy, available and affordable to everyone. Also predictably, as with the battle over whether the EPA or Congress ought to regulate carbon emissions, the forces of the status quo turned on a dime and went from “the expert agency has things in hand” to “Now that Congress is thinking about taking action the FCC should do nothing until Congress acts.” Also predictably, Republicans have echoed the industry talking points.
Also sadly predictably, a bunch of Democrats have echoed the same talking points. After a year and a half of watching the health care debate, it should come as no surprise that Will Rogers famous dictum “I am not a member of any organized party — I am a Democrat” remains as true as ever. But when even normally sensible folks like Sen. Debbie Stabenow (D-MI) start getting confused on how this is supposed to work, it becomes clear that the D Leadership needs to clear things up.
The Kerry/Cantwell/Udall/Wyden letter makes it clear that Genachowski has not “gone rogue” or is exceeding his authority. The chair of the relevant Subcommittee and other Committee Ds have now made it crystal clear that they do not want Genachowski to sit on the sidelines while Congress tries to act. To the contrary, because it can take Congress a long time to pass a law, Congress depends on administrative agencies like the FCC to do their jobs with the statutory tools they have while Congress sorts things out. That is why they stress that Genachowski moving forward is the “reasonable and responsible” thing to do, and point out that Genachowski developing a record will ultimately help Congress when it does start drafting.
This does not, of course, stop Democrats from parroting Republicans, reading from industry talking points, and displaying the usual Democratic genius for pissing off their base. What it does do is force the Dems who have tried to cast themselves as “we love Net Neutrality and want to support the Committee efforts at a real solution” to choose between AT&T and the Democratic leadership. It is impossible to claim that puting the brakes on the FCC “supports” Kerry and the other Committee Dems when Kerry and the Committee Dems are saying “the FCC needs to do its and move ahead on Title II while we do our job and get a bill ready.”
It also pushes back on the narrative that — despite continued statements of support for Genachowski from House Speaker Nancy Pelosi and other senior Dems — that Genachowski’s support is “fading” and that the congressional committee chairs are backtracking. Indeed, the sad thing is that it is probably time for Obama to take a minute from looking for more BP ass to kick and issue another statement showing his unwavering support for Genachowski’s approach. Again, one would think that it would not be necessary for the President to need to come out and say every couple of months “no, we are not backing away, we really mean it, we totally support Genachowski doing his job — that’s why we appointed him in the first place.” But such is Washington, and the power of the corporate echo chamber, that the failure to keep repeating affirmative support incessantly gets translated into a lack of support.
For today, at least, the Kerry, et al. letter ought to provide proof that the Committee Leadership stands with Genachowski — as it has done since even before Genachowski officially started down this road.
About Harold Feld
Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” (Public Knowledge & Roosevelt Institute 2019) a guide on what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Circuit Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”