Broadband Plan Praised

Democrats, Republicans Square Off on FCC Internet Regulation Role

March 26, 2010 |Top News

Debate over the FCC’s authority to regulate the Internet heated up at a House Communications Subcommittee hearing Thursday on the National Broadband Plan. Republicans strongly opposed the FCC invoking Title II of the Communications Act if the commission loses an effort to persuade the U.S. Court of Appeals for the District of Columbia Circuit that it can regulate broadband under Title I. But Democrats seemed open to the possibility. Lawmakers from the two parties differed on plan details but praised the FCC for hard work and ambition. “Y'all have done as good as could be done,” said Rep. Joe Barton, R-Texas, the Commerce Committee’s ranking member.

Reclassifying broadband under the commission’s Title II authority is the “worst idea in years,” Barton said. “I just don’t want to do it, and I don’t think the country wants to do it.” But Commerce Chairman Henry Waxman, D-Calif., appeared open to exploring a variety of options. Whatever the appeals court rules, “the Commission should take the steps it deems necessary to ensure it can implement the plan, and to ensure that broadband consumers are protected,” he said. A day earlier, Communications Subcommittee Chairman Rick Boucher, D-Va., said he hopes in the next Congress to work on a Telecom Act overhaul to deal with these issues (CD March 25 p1).

Invoking Title II wouldn’t mean “the Earth would stop spinning on its axis and the end of time would be upon us,” said Rep. Ed Markey, D-Mass. Title II applied to DSL from 1996 until 2005, and it led to many good rules, he said. If the court doesn’t uphold the FCC’s Title I authority, Congress will work with the FCC to ensure that all the goals of the broadband plan can be achieved, he said. Markey said he disagrees with those who contend FCC shouldn’t have authority under either title and instead should become an enforcement agency: “History says that that’s completely wrong."

FCC Chairman Julius Genachowski said he agreed with former FCC Chairman Bill Kennard that a deregulatory, competitive approach has led to Internet innovation. But he said the FCC needs policies to promote investment and competition and to protect consumers. Later, Genachowski said he’s “not in favor of regulating the Internet,” and he disputed that net neutrality is Internet regulation. “The FCC has for many decades had rules that apply to the on ramps for the Internet to promote competition, to make sure those are free and open and fair,” he said.

Commissioners Robert McDowell and Meredith Baker said they worry that regulation could chill investment. “Innovation and investment are thriving,” McDowell said. “Any policies the government adopts should nurture and strengthen these trends and not undermine them.” He disputed that Title II has ever been used to regulate broadband. Baker said she’s “concerned that some of the proposals in the plan have the commission chart a more radical path changing our market-based regulatory framework mid-course, in a manner that could diminish our much-needed emphasis on adoption and chill the private investment we need for our broadband infrastructure."

House Republicans praised the broadband plan’s findings and goals but asked whether they're worth the cost of the plan’s preparation. Communications Subcommittee Ranking Member Cliff Stearns, R-Fla., said Genachowski told him it cost $20 million to produce the report. Stearns asked whether the money was well spent, since to him the document confirms that a free-market approach has worked. Barton generally supports the USF and spectrum recommendations, but he said the plan seems to set up the “Find Something for the FCC to Do that Makes Sense in the 21st Century Program,” because 95 percent of the country has access to broadband without the government’s having “spent a dime."

Some Democrats mentioned qualms about other recommendations. Rep. John Dingell, D-Mich., said he had misgivings about handing broadcasting spectrum over to mobile carriers and reviving old policy fights about unbundling, a “glorious mess” since its adoption in the 1990s, he said. Congress should be the “sole progenitor” of FCC authority, and the commission should focus on making broadband more accessible and affordable, he said. Rep. Bobby Rush, D-Ill., said a “stunning omission” of the plan was the absence of recommendations about the role of minority-owned businesses.

Genachowski and Clyburn said they weren’t sure whether the FCC has authority to impose unbundling rules on broadband but would provide Dingell a written answer. Copps said the FCC does have the authority. McDowell and Clyburn said it doesn’t. If the FCC applied unbundling rules to fiber, that probably would mean “a tremendous amount of litigation” that the commission would lose, McDowell said.

Waxman said he hopes Thursday’s hearing will be the first in a series. Future sessions should take up specific aspects of the plan including public safety, USF overhaul, spectrum policy, disabilities and broadband deployment and adoption, he said.

The Senate Commerce Committee on Thursday moved its hearing on the broadband plan to 2:30 p.m. April 14. Genachowski is the only commissioner invited to testify. The hearing and all others that had been scheduled for Tuesday were canceled in a dispute over the health care legislation. -- Adam Bender

Hearing Notebook

Waxman said he told his aides to start drafting legislation to carry out the plan’s public-safety recommendations: “Significant funding will be needed to effectuate the concepts outlined in the plan. But I believe we must find a way to move forward on a bipartisan basis to meet the needs of the public safety community.” Genachowski agreed with Boucher that the FCC needs Waxman’s legislation to ensure that auction revenue goes to public safety.

Congress should pass legislation to allow private meetings among three or more FCC members, said Commissioners Michael Copps and Mignon Clyburn. They support HR-4167 by Rep. Bart Stupak, D-Mich. “It would be a great step forward,” Copps said. “You do it with counsel present, you build in protections, but the system we have right now disserves the public interest” and slows the FCC’s work. “If there was one reform that I could make at the FCC,” Stupak’s bill “would be it.” Clyburn agreed, saying current rules create a “very cumbersome process.” Boucher said the subcommittee would hold a hearing on the bill “in the not-so-distant future."

Rep. Doris Matsui, D-Calif., said she plans to introduce smart-grid legislation soon. The bill would complement many of the FCC’s recommendations about arming consumers with information to save energy and money, she said.