FCC Reclassification Possible to Achieve Net Neutrality

FCC Chairman Julius Genachowski may lack a way to avoid reclassifying broadband while still requiring net neutrality, said numerous commission and industry officials not involved in internal deliberations on Comcast v. FCC. Losing the case at the U.S. Appeals Court for the D.C. Circuit on statutory grounds Tuesday (CD April 8 p1) leaves Genachowski with few choices that appear palatable to him, they said. One likely outcome if the FCC doesn’t appeal is deeming broadband a common carrier and not an information service.

Genachowski seems to prefer not reclassifying broadband but remains intent on achieving net neutrality, commission and industry officials said. The offices of the chairman and FCC general counsel are taking the lead on internal deliberations on how to proceed after the D.C. Circuit loss, commission officials said. Some aides to Genachowski appear to think reclassification is the best option, though the chairman hasn’t made up his mind or even indicated which way he’s leaning, commission and industry officials said. If the FCC deems broadband a Title II service, there likely would be heavy forbearance from regulations associated with common carriers, some of them said. A Media Bureau spokeswoman declined to comment.

"We're in the process of scrutinizing it very closely” and the regulator intends to invite outside parties in to discuss the matter, Chief of Staff Ed Lazarus told a Media Institute lunch in a Q-and-A session Wednesday. “It isn’t a two-day process. It also isn’t a long process.” He declined to discuss reclassification. “At the end of the day, we're going to move forward with our policy” goals, Lazarus said. “We are going to accomplish this agenda."

Addressing the court ruling and net neutrality presents “a legal policy and politics dilemma, which makes it so challenging,” said lawyer Sam Feder of Jenner & Block, FCC general counsel 2005-2008. “They want to do it right and have to do it with good legal grounding, but have to look at the ramifications on other policies and politics” on net neutrality. Those factors “point in different directions,” he said. The D.C. Circuit’s remand of the triennial review order is the closest thing Feder could think of to the Comcast remand. The agency didn’t again pursue network unbundling after that 2004 remand, but not pursing net neutrality now isn’t “a tenable result,” Feder said. “Here you have a much more unified commission, at least among the majority party.”

If Genachowski decides on reclassification, a 3-2 vote along party lines seems the likeliest outcome, commission officials said. Promulgating a net neutrality order still relying on Title I authority is possible, according to FCC and industry officials, with some saying it makes sense. “Even if reclassification survives court review, just putting broadband into Title II creates overhang that the FCC might later order network unbundling or rate regulation,” a communications lawyer said. “That overhang can’t be good for the jobs and network investment the White House is looking for.”

A cable lawyer views reclassification for Genachowski as “the most viable shot he’s got if he’s not going to back down” on net neutrality. “I don’t think he can wait for legislation” giving the FCC explicit authority to act, the lawyer said. With Commissioner Michael Copps an apparent reclassification supporter (CD Jan 22 p3), the lawyer said, Genachowski has “got to swallow the reclassification medicine for now and he may end up forbearing a lot of stuff.”