Key senator gears Congress for a long fight to reform the FCC

A long-planned hearing on Capitol Hill to discuss the Federal Communications Commission's Broadband Plan took on new meaning yesterday, a week after the DC Circuit Court ruled the Commission lacked the authority to implement net neutrality regulations. With a coalition of Internet business interests pleading with the FCC to declare itself the "cop-on-the-beat" for net neutrality under a different provision of US telecom law than it had been using, now Sen. Jay Rockefeller (D - WV), chairman of the Senate Commerce Committee, says the FCC may not need to take that step.

In his remarks yesterday, Sen. Rockefeller told his committee he's ready to begin the long, and undoubtedly arduous, process of changing the law to give the FCC the authority that the Broadband Plan assumed it had to begin with.

"No doubt, this ruling adds to the complexities of the FCC's task, but for me, two things are clear. First, in the near-term, I want the agency to use all of its existing authority to protect consumers and pursue the broad objectives of the broadband plan. Second, in the long-term, if there is a need to rewrite the law to provide consumers, the FCC, and industry with a new framework, I will take that task on," stated Rockefeller.

The FCC had been acting on what it thought was the mandate of Title I of the Telecommunications Act, last amended in 1996. Prior chairpersons of the Commission had concluded that it had ancillary authority under Title I, which covers information services, to regulate Internet practices. Title II covers telecommunications services, like telephone networks; and since the Clinton administration, all FCC leaders up to and including the current Julius Genachowski had distinguished Internet service from telecommunications service.

Last week's DC Circuit ruling stated that the FCC failed to prove its Title I case when ordering Comcast not to throttle BitTorrent traffic. Not waiting for the Commerce Committee chairman to make his case, Ranking Member Sen. Kay Bailey Hutchison (R - Texas) yesterday drew a line in the sand, warning the Commission that Republicans would take action if it were to suddenly jump tracks from I to II.

"In my judgment, if the FCC were to take the action Chairman Genachowski and his colleagues appear to be considering, reclassifying broadband without a directive from Congress and a thorough analysis of the facts and the potential consequences to investment, the legitimacy of the agency would be seriously compromised," remarked Sen. Hutchison yesterday. "I hope that we can take a step back to consider the consequences of such a decision and whether there are alternatives we can work together on to clarify the authority of the FCC while preserving an environment that encourages investment. I am confident we can find common ground, but that will not happen if the FCC takes this action."

For his part, Chairman Genachowski yesterday proceeded with his prepared remarks, emphasizing the Plan's goals for building out broadband, and underscoring the US' lagging success toward those goals compared to other countries. One of the Plan's key goals concerns retooling the existing Universal Service Fund -- created in 1996 to fund the expansion of telephone service to rural areas and small schools and libraries -- for building out broadband as well. Once again, the FCC could only shift those priorities if it had existing authority, granted by Congress, to do so -- something the Comcast ruling asserted it might not have.

That fact forced the Chairman to add a footnote to his prepared remarks, though he lavishly embellished that footnote with every impending danger imaginable, including from terrorism and natural disaster: "Notwithstanding the decision last week in the Comcast case, I am confident that the Commission has the authority it needs to implement the broadband plan. Whatever flaws may have existed in the specific actions and reasoning before the court in that case, I believe that the Communications Act -- as amended in 1996 -- enables the Commission to, for example, reform universal service to connect everyone to broadband communications, including in rural areas and Native American communities; help connect schools and rural health clinics to broadband; take steps to ensure that we lead the world in mobile; promote competition; support robust use of broadband by small businesses to drive productivity, growth, job creation and ongoing innovation; protect and empower all consumers of broadband communications, including thorough transparency and disclosure to help make the market work; safeguard consumer privacy; work to increase broadband adoption in all communities and ensure fair access for people with disabilities; help protect broadband communications networks against cyber-attack and other disasters; and ensure that all broadband users can reach 911 in an emergency."

Apparently, the Chairman wrote his remarks without any idea beforehand of what Sen. Rockefeller would say in his. So he ended up being pre-empted by Rockefeller's assertion that the Broadband Plan was long on goals, but short on methods.

"The report has over 200 recommendations. But it takes no action. It is long on vision, but short on tactics," the Commerce Committee chairman said. "So I am going to challenge the FCC. I am going to challenge the FCC to make the hard choices that will help bring broadband to every corner of this country. Putting ideas on paper is not enough. Just seeking comment on a slew of issues is not enough. It's action that counts."