Democrats, Republicans at FCC Oversight Hearing Clash on Reclassification

FCC Chairman Julius Genachowski repeatedly deflected senators’ questions Wednesday on how the commission will respond to the recent net neutrality decision by the D.C. Circuit U.S. Court of Appeals. At a Senate Commerce Committee hearing, Genachowski said the FCC has all the authority it needs to carry out proposals in the National Broadband Plan. Democratic senators seemed open to reclassifying broadband under Title II of the Communications Act, at least as a stopgap before a new law. Republicans sharply disagreed. “The legitimacy of the agency would be seriously compromised” if the FCC reclassifies broadband as a common-carrier service without instructions from Congress, said Ranking Member Kay Bailey Hutchison, R-Texas.

The court case “puts the whole National Broadband Plan at risk,” said Chairman Jay Rockefeller, D-W.Va. Near term, the FCC should “use all of its existing authority to protect consumers and pursue the broad objectives of the broadband plan,” he said. “In the long term, if there’s a need to rewrite the law to provide consumers, the FCC and industry with a new framework, I will take that task on.” He urged the FCC to come to the committee if it has any problems doing what it needs to do.

"There are legal issues” that the FCC must deal with in light of the court ruling, Genachowski said. Several senators pressed him for specifics, but the chairman would say only that he has asked his staff to take the matter seriously and to look at all the options, he said. “I haven’t made any decisions.”

The FCC is trying to build a sound legal framework to preserve an open Internet in its net neutrality rulemaking, Genachowski said. “I agree in a light-touch approach,” but the commission concluded that rules were needed when it adopted its Internet principles, he said. The FCC can strike a balance with rules that wouldn’t discourage investment, the chairman said.

The FCC has legal authority to reclassify broadband “to protect consumers and provide for universal access to affordable broadband,” said Chairman John Kerry, D-Mass., of the Senate Communications Subcommittee. He said in a written statement that he isn’t “opposed to considering a new legal regime of governance” specific to broadband, but the commission needs oversight authority until then. If the FCC can come up with an alternative to reclassification, “I am open to hearing it,” Kerry added. Sen. Byron Dorgan, D-N.D., said he doesn’t “believe in the light touch.” The commission should have “the touch that’s necessary” to protect the public interest, he said. There’s not enough time for Congress to act this year, so the FCC probably will have to take action, Dorgan said.

But Hutchison said the court case should be a “warning flag” to the commission that it must not overstep its bounds. “I am very concerned the FCC is going to overstep its congressional authority,” she said. A “regulatory soft touch” on the Internet has resulted in more choices and better prices for consumers, Hutchison said. The D.C. Circuit reached the right conclusion, and the FCC should “now abandon a misguided pursuit of net neutrality regulations,” said Communications Subcommittee Ranking Member John Ensign. Reclassifying “would be like remaking the world,” said Sen. Mike Johanns, R-Neb.

But Sen. Olympia Snowe, R-Maine, said innovation “has really been compatible” with nondiscrimination rules since the FCC’s 2005 Internet policies. Net neutrality doesn’t mean regulating the Internet but rather “keeping it as it is,” she said. “It’s really maintaining the status quo.”

Genachowski also played defense against both parties on the National Broadband Plan. Rockefeller said he wants additional action right away. The plan is “long on vision but short on tactics,” he said. “Putting ideas on paper is not enough. Just seeking comment on a slew of issues is not enough. It’s action that counts. A mere menu of options for the FCC and the Congress with far-off time frames is not good enough.”

Genachowski replied that an action plan released last week was unprecedented for the FCC. The commission has already taken actions to move broadband forward, and work is under way on proposals in the plan, he said.

Republicans complained about the amount of regulation recommended by the plan. Ensign said he was disappointed that the plan doesn’t include many recommendations to get the government out of industry’s way. Hutchison asked why the plan proposed no incentives for companies to invest. Genachowski said the plan contains “a number of ways” to encourage investment, including knocking down barriers like right-of-way laws.

After putting broadcasters through the DTV transition, it would be “wrong” to reallocate their spectrum, said Hutchison. She said she will be monitoring the agency to ensure that “there will not be a heavy hand with involuntary requirements.”