Lawmakers: FCC may need to regulate broadband

Two senior lawmakers ask the FCC to consider reclassifying broadband service

Two powerful Democratic members of Congress have called on the U.S. Federal Communications Commission to consider reclassifying broadband as a regulated common-carrier service in order to protect Net neutrality rules and implement parts of its national broadband plan.

The letter from Rep. Henry Waxman (D-Calif.), chairman of the House Energy and Commerce Committee, and Sen. Jay Rockefeller (D-W. Va.), chairman of the Senate Commerce, Science, and Transportation Committee, called on the FCC to consider "all viable" options, including reclassifying broadband as a common-carrier service, to move the national broadband plan forward.

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Rockefeller and Waxman wrote in a letter to the FCC, released today, that they are concerned about the agency's ability to implement large parts of the broadband plan and create Net neutrality rules following a decision last month by the U.S. Court of Appeals for the District of Columbia Circuit, in which the court ruled the FCC did not have the authority to enforce informal Net neutrality principles against Comcast.

Several communications law experts have questioned the FCC's authority, with broadband now classified as a largely unregulated information service, to create programs to fund broadband deployment to unserved areas, to create Net neutrality rules, and to require broadband providers to provide consumers with accurate information about connections speeds, the two lawmakers wrote in their letter.

"We believe that it is essential for the Commission to have oversight over these aspects of broadband policy, because they are vitally important to consumers and our growing digital economy," the two chairmen wrote. "For this reason, in the near term, we want the agency to use all of its existing authority to protect consumers and pursue the broad objectives of the National Broadband Plan."

The letter from Waxman and Rockefeller comes after a Washington Post report on Monday saying that FCC Chairman Julius Genachowski appears to be backing away from calls by Net neutrality advocates that the FCC reclassify broadband as a common-carrier service, regulated under Title II of the Communications Act.

If Genachowski refuses to shift broadband service to Title II, it would lead to multiple lawsuits, with court challenges every time the FCC tries to enact rules affecting broadband, said representatives of Free Press, a media reform group and Net neutrality supporter. Without reclassifying broadband, the FCC would be abandoning the longtime pledge by U.S. President Barack Obama to pass Net neutrality rules, said University of Nebraska law professor Marvin Ammori, a senior adviser to Free Press.

If the FCC tries to pass Net neutrality rules without reclassifying broadband as a Title II service, "that means they're abandoning Net neutrality," Ammori said. "It's a sham, essentially."

Others have questioned the need for the FCC to reclassify broadband. Even without acting to reclassify broadband, the FCC has already begun to move forward on several items in the National Broadband Plan, released in March, said Barbara Esbin, a senior fellow at the Progress and Freedom Foundation, a free-market think tank. "The FCC's implementation of the plan seems to be moving full steam ahead, rather than resting dead in its tracks," she said.

The appeals court's Comcast decision was narrow in focus, and the FCC can still assert authority over broadband when it ties that action to "express regulatory power," Esbin said Tuesday, during a debate on the Comcast decision at the New America Foundation. Reclassifying broadband would be a "legally suspect" move likely seen by courts as more of a way to get around an unfavorable court ruling than a legitimate change in policy, she added.

Some Republican lawmakers and opponents of net neutrality have suggested the FCC should go to Congress if it wants Net neutrality rules.

Waxman and Rockefeller, in their letter, said they are committed to rewriting telecom law, if needed, over the "long term."

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