Clarifying What I Would Do If I Were FCC Chair

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 too.

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, DC.  

Better put the cork back in the bottle folks, because the title misrepresents both what was said at the event and Public Knowledge’s position.

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 rules.

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 decision.   

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 protection.

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. FCC, 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.

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