Interview: Internet coalition leader sees a way through for the Broadband Plan

SCOTT FULTON, Betanews: If you don't have to revert to old-style, 1994 telephone regulations, what does one do instead? It seems like you're implying that reclassification is a first step, and that there are several steps thereafter.

MARKHAM ERICKSON, Executive Director, Open Internet Coalition: Yes, I think there's at least another step after that. First, you'd have to reclassify. You would then have to forebear from some of the Title II provisions that you wouldn't want to see applied to today's Internet access providers, that may have applied to old-style telephone carriers. And then you'd have to develop rules that would interpret the provisions in Title II, or use those sections of Title II, and maybe parts of Title I under ancillary authority, to address the things that are in the Broadband Plan, whether it's network neutrality or USF reform, or the privacy issues, the truth in billing provisions, the things that [FCC] Chairman Julius Genachowski [Wednesday] in his Senate testimony talked about wanting to move forward on.

There's not just one way to do it; there are several options ahead of them, and I don't want to get into those yet, because we're still working through those, and I'm sure that Chairman Genachowski's team is working through those. But I think the talking points you're seeing from George Ou are really setting up a non-existent straw man.

SCOTT FULTON: You already answered my question on Tuesday with regard to the role of Congress. Can the Commission by itself do these things that you are requesting of it, without the intervention or the oversight of Congress?

MARKHAM ERICKSON: Well, they'll always have the oversight of Congress. The FCC, by law, is overseen by Congress, they have oversight hearings pretty regularly -- [Wednesday] was one of those. But whether you need a Congressional enactment, a new piece of legislation, no, absolutely not. You don't need that. The FCC, when they engaged in the first place to classify Internet access as information services in 2002, it [rendered] a declaratory ruling without any Congressional intervention. And they can simply revisit that decision on their own, and reverse that decision like they did...in 2002. Now, they have to do so in a well-reasoned way, with legal and factual arguments that would be able to survive review at the DC Circuit, or whatever circuit is looking at that. I think there are facts that are handed to them that they can utilize.

At the same time, if Congress is going to work out a piece of legislation concurrently, that can happen too. I think the point to remember is that Congress doesn't do anything very quickly. The '96 Act took roughly ten years from theory to final passage. So the choice really for all of us is, if the FCC had the legal authority to move forward on the National Broadband Plan, should they do that, or should they wait for Congress, which potentially takes ten years? I think the answer is, they should not wait ten years, that they should move forward, and in the meantime, work with Congress as Congress works on a piece of legislation too.

SCOTT FULTON: Without actually signing his name to any particular way of thinking, I noticed that Sen. Rockefeller [Wednesday] said that if it should become necessary for Congress to rewrite laws, and thereby help the Commission along...then he's happy to start that process. Should Chairman Genachowski, in your mind, say, "Thanks, Jay, but no, thanks?"

MARKHAM ERICKSON: No, I think what you saw Chairman Rockefeller say is both. He said, they're willing to stand at the ready to draft legislation if it's necessary. But he also said that, in his opinion, the FCC has all the tools they need to move forward without Congress. So I think he was giving the Chairman the green light to move forward unilaterally without Congress, but saying, if you get stuck, he'll stand ready to move legislation. I actually think that you could go forward concurrently.

SCOTT FULTON: You mentioned there were only 68 legislative session days before this term is out [67 as of Friday]. Ranking Member Kay Bailey Hutchison drew a line in the sand, warning the Chairman against trying a redeclaration, not necessarily saying what she'll do as repercussion, but I'll assume even though the Republican party may be in the super-minority today, it's likely that after the next Congressional election it will not be...Since it takes years for Congress to get anything done, the Republicans could mount a very significant counter-offensive. We've heard the term "net neutrality" bandied about, lifting the spirits of the proponents of the Broadband Plan; I'm imagining how that will play against "big government."

MARKHAM ERICKSON: The way I look at it, I think in some ways, the Comcast decision was interesting in that, under the concept of ancillary authority as proposed by the Commission -- and the Comcast court pointed this out -- it was hard to see what the limits of the FCC's authority would be. If the FCC were to take a much more conservative approach, by narrowly reclassifying broadband access facilities as telecommunications services, you're talking about a narrow segment of industry, and...we would expect to see a very light touch regulation even on those providers, just to accomplish the goals of the National Broadband Plan and network neutrality. For those who are worried about the FCC's larger reach into other segments of the Internet, and other things, I think the Comcast decision sort of solves that issue for you. I think the reclassification issue is actually the smaller government, more narrow approach to handling issues like network neutrality.

SCOTT FULTON: Well, when you use "net neutrality" and "light touch" in the same sentence, there are a lot of people who would say it takes a lot more than a light touch -- maybe more of a fiery touch -- to be able to reach in and tell an Internet service provider, for example, you may not limit the use of an application on your network in a particular fashion, or you may not employ this type of network management technique. Inevitably, someone will call out interference.

MARKHAM ERICKSON: You know the rules, at least as proposed, would provide network operators an extraordinary amount of flexibility to manage their networks without any second-guessing, without any sort of blacklists or whitelists about things they may or may not do. And I think that's the right approach. I want to see, and I think most stakeholders want to see, the ISPs be able to manage their networks without a lot of second-guessing and without having to look over their shoulders and secure their networks and deal with congestion, and again I think that tends to be a straw man that isn't based on, at least, the way I read the rules and what we're interested in seeing.

SCOTT FULTON: If the Commission goes forth with the plan as you see it, and tries reclassification, is there hope for the Commission being able to achieve getting back on that track before the current legislative session expires?

MARKHAM ERICKSON: Absolutely.