Title II Reclassification ‘Only Viable Way’ to Proceed, Copps Says

Reclassifying broadband as a Title II service is the best way for the FCC to avoid being reversed in court on net neutrality rules while quickly providing certainty to companies and their investors, Commissioner Michael Copps said Thursday. The April 6 Comcast ruling shows that commission orders in 2002 and 2005 deeming cable modem and DSL as information services were wrong, Copps said in an interview with a Communications Daily reporter for an episode of The Communicators to air this weekend on C-SPAN. Time is of the essence in FCC action on reclassification, and Copps is optimistic two or more colleagues will agree with him, he said.

"This ecosystem is evolving very quickly,” Copps said. “We don’t have a year or two years or three years or five years to come up with wonderful new permutations of Title I authority. And every time we do that someone is going to drag us into court. The cleanest way to do this, the best way to do this, in my mind the only viable way to do this, is to reclassify."

Copps’ comments put him at odds with Commissioner Robert McDowell, who said last week that any order making broadband a Title II common carrier service faces being overturned on appeal (CD April 26 p1). FCC Chairman Julius Genachowski is said to be undecided on what to do. Copps hopes “when the dust settles that we will have a majority at least that’s in favor of doing that,” Copps said. “Everything we do over the nine years that I've been there leads to court cases. So when you go into court, you want to have the best case possible, you want to have the strongest case. And I think that’s the strongest way to go. Just say we're calling this what it is."

Proceeding under information service authority isn’t the way to go and won’t necessarily lead to a better outcome for companies and their investors, Copps said. “Trying to invent all these wonderful new angles on something” is “like death from a thousand cuts,” he said. The need for investor confidence is a reason “not to go down this experimental route,” he said. “Are we going to try this new angle on Title I or this or this?” The regulator ought to “just make a decision -- this is going to be the rule of the road, and investors understand what the game is, and they get back in an even a bigger fashion,” he continued. “I would hope that the investment community and the political community and the legal community and the judicial community and all of us would take an expansive look at that, just step back a little bit. … Exercising some measure of public interest oversight on it should not scare investors off.”

A broad agreement among stakeholders on how to treat Internet content could be a way to reach a “happy outcome,” the commissioner said. Genachowski “has certainly provided the kind of atmosphere for give-and-take that you saw in the National Broadband Plan that would be encouraging of circumstances like that,” Copps said. Under such a scenario, it would be best if the regulator found “some kind of way to recognize that and affiliate itself with that so you have rules of the road so when you went to court again with your best foot in some solid ground,” he said. “I'm not saying it has to end that way."

Copps had advice for broadcasters who face reallocation of their spectrum in major cities for wireless broadband: Do a better job serving the public interest with local news and information. Had there been more such content including on digital multicast streams, which never reached a critical mass, “I think people would be much more reluctant to come up with ideas for let’s take that spectrum away,” Copps said. “I want to see that spectrum used for public interest, and when the time comes, if it comes … if that spectrum is really being used” for enhanced localism and diversity, “I would be much more amenable to keeping that spectrum in the hands of local broadcasters.”

Comcast’s planned buy of control in NBC Universal “remains a steep climb” for Copps to approve as other media deals have been for him, he said. “We should have some public hearings at the FCC. This is not without precedent.” It occurred in AOL-Time Warner and in other deals, the commissioner said. Some groups are hopeful the commission will hold at least one such informational hearing outside Washington (CD April 29 p4). “There are a lot of questions to be asked here: Is this going to have an impact on consumer rates” and “impact on access to the Internet, what’s it going to do to programming, what’s it going to do to local news,” he said. “We could use a stronger NBC in some ways but maybe not in others, so we really have to get in and measure that.”