Skype and colleagues to FCC: Declare yourself fit to regulate the net

The FCC's "spare tire"...

The Open Internet Coalition's Markham Erickson believes that the FCC can salvage its ability to execute the Broadband Plan proposed earlier this year by Chairman Julius Genachowski, if it can declare itself the regulator of merit for Internet service under a different legal theory than the one struck down last week by the DC Circuit Court, in a ruling favoring Comcast.

"I would almost look at reclassification as sort of a spare tire that lets the Commission move forward on its agenda, and Congress can always make a comprehensive fix to the Telecom Act at the same time," said Erickson in response to a question from Betanews. Though he also suggested that Congress may not act at all, citing the fact that it took at least ten years for it to debate the last set of changes to the Telecommunications Act under the Clinton administration.

Declaring the Internet a Title II service, Erickson suggested, would be "an elegant solution, in that it is a narrow approach that returns the FCC to narrowly regulating just the on-ramps to the Internet. At the same, I think, it protects the edge-based providers and the Internet as a whole from being put under regulation under a broader theory, and a more uncertain theory of ancillary authority under Title I [of the Telecommunications Act].

"I actually think that the Comcast decision, in many ways, was a blessing," he continued, "in that it's really saying that the Commission needs to jettison the amorphous concept of ancillary authority, because it's not clear exactly how far that extends into the Internet. If it refocuses on just the last-mile facilities of the Internet access provider, they would be on solid legal foundation. It's also something that the Supreme Court mentioned in the Brand X Decision, that the FCC could of course revisit its decision and reverse its decision, and if they did so, they would be on solid legal foundation. It was Justice Scalia who dissented from affirming the FCC's ruling in the cable modem order, saying quite clearly, the facilities [of] the Internet access provider are separate offerings that are telecommunications services, not information services."

Betanews asked Erickson, wouldn't such a move by the FCC simply delay, or at least overlook, the inevitable necessity of Congress to make new law with regard to who should regulate the Internet, or parts of the Internet?

"The Comcast court [DC Circuit] was clear that they were very skeptical of the use of Title I ancillary authority to regulate Internet access providers. I would make a distinction between regulating the Internet and regulating the last-mile facilities of the Internet access providers," he responded. "But if the FCC were to classify these services as telecommunications services -- which many of them were until they were reclassified as information services under Title I -- under Title II, the Commission would have a solid legal foundation."

The DC Circuit order, Erickson noted, not only leaves the door open for the FCC to make that declaration, but suggests that it could still do so -- not only leading the horse to water, but shoving its nose into the lake. "If the Commission revisits that [2002 Brand X] order, they would be on solid legal foundation. It's not to say that Congress may not want to update the [Telecommunications] Act in and of itself. I don't think it's entirely necessary. I think that these are essential communications platforms, and telecommunications services under Title II have historically applied to essential communications platforms -- that is, two-way communications where the facility provider that allowing for those two-way communications to happen, isn't interfering in the communications."

Representing Skype's interest in the affair (certainly a telecommunications service in the technical sense, and in some countries, the legal sense as well), its Senior Director of Government and Regulatory Affairs, Christopher Libertelli, told the press conference today that the bigger, traditional carriers such as Verizon and AT&T aren't going to start regulating themselves -- despite their public promises -- in the absence of leadership from the FCC, or from somebody.

"Carriers have long engaged in dialog around this idea of a voluntary code of conduct that would, I guess, substitute for a government policy," Libertelli remarked. "And I think it's interesting, because after the Comcast case, government has no policy in this space. It lacks subject matter jurisdiction, as the FCC lacks subject matter jurisdiction to enforce its Internet policy statement. So we should think about these efforts to do voluntary, industry-led enforcement mechanisms against this vacuum. The carriers know that it's not sustainable for the chairman of the FCC to not have subject matter jurisdiction in this important area, and have no policy.

"The key is enforceability," he continued. "My job is to protect the Skype community. If you're a Skype user, my job is to bring your concerns to the regulator should the carriers' worst behavior block or degrade your conversation. So at some level, this whole Title I/Title II debate is about, where do consumers go? Title II is a mechanism that would provide consumers with a place to go to the FCC, to bring to regulators' attention conduct that harms consumers. If this notion of a voluntary process lacks that essential enforceability feature, I think it's going to fall short of establishing a real government policy in this area."