The FCC has released some comments on the Order it will be presenting on net neutrality at its December 21st meeting (if it doesn’t postpone or change the agenda again!) and the position is disappointing.
At a high level, what the FCC proposes is to state again its original principles of neutrality and apply only transparency and openness as standards in the wireless space. That’s not necessarily a bad position, but it does beg the questions that the Cablevision/Fox and Comcast/Level 3 disputes have raised. The problem is that the FCC is not proposing to use Title II reclassification to establish jurisdiction here, but instead relying primarily on what’s called “Title I” but should more accurately be called “Section 706” jurisdiction. That, in my view, may well be insufficient.
Section 706 says:
The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.
You can see that first-off, it talks about “advanced telecommunications capability” here, and we have not classified broadband as telecommunications. When this section was translated into amendments to the Communications Act of 1934, only the forbearance part was translated into Title I.
The second problem is that the FCC presented Section 706 authority to the Court of Appeals in the Comcast case, and the court rejected it. While it’s possible that the court was saying that the FCC hadn’t laid the right foundation to use it (the court pointed out that the FCC has said consistently that Section 706 didn’t convey independent authority, only the obligation to use authority the FCC had explicitly from other sections), it’s also possible that the court would simply reject the order on the same basis.
The right way to go here is what the Republican minority wanted (probably more to be disagreeable than on principle, to be sure): Classify broadband (not the Internet) as a Telecommunications Service and then forbear from the wholesaling regulations and other sections as needed. The FCC clearly has the authority for this, but it seems unwilling to buck the flood of negative (and uninformed) PR on the topic. I still hope that this might change as the meeting approaches, because we need some clarity here, and this doesn’t seem likely to be the path to getting it.