Clyburn Supports FCC Net Neutrality Action; Baker Doesn’t

It could take Congress multiple tries and years to pass “key legislation,” on net neutrality, Clyburn said. Genachowski recently said he intends to use the commission’s authority under Title I of the Communications Act to enforce net neutrality (CD Dec 2 p1). Clyburn declined after her speech to discuss details of Genachowski’s plan, saying she and her staff were still reviewing it.

Clyburn is “not opposed to Congress acting,” but the time that would take could hurt progress and investment “by perpetuating uncertainty in the marketplace,” she said. “While Congress can often take a long time to act, the commission is often more nimble and best able, to adapt to the dynamic changes in the marketplace.” Clyburn said she will concentrate on the wireless piece of the proposal for now, because “it is essential that our wireless networks -- those of the present and future -- grow in an open way just as our wired ones have.” Despite the technical differences between wired and wireless networks, “the basic user experience should be the same,” she said.

A broad consensus among all interests on the net neutrality proceeding is being sought before the Dec. 21 vote on the item and is “pretty close,” Clyburn said. The proposal “affords all stakeholders a perfect opportunity to work toward a solution that, while not perfect,” is good for consumers and the future of the Internet, she said.

Baker, speaking late Thursday at the conference, offered a view starkly different from Clyburn’s. Both joined the commission at around the same time as Genachowski, all in summer 2009. There are “two branches of government -- Congress and the courts -- expressing grave concerns with our agency becoming increasingly unmoored from our statutory authority,” Baker said. “By seeking to regulate the Internet now, we exceed the authority Congress has given us, and justify those concerns.” She noted that more than 300 members of Congress have expressed qualms about Genachowski’s approach to net neutrality, she and expressed concerns of her own about procedural handling of the draft order at the FCC.

"I reject outright that adopting net neutrality rules under a Title I approach is in any way a compromise position,” Baker said. It’s “spin that this is a middle ground approach,” she continued. “Carriers are faced with two choices: Door number one is Title II -- the most intrusive regulatory tool available to the commission designed for monopoly-era telephone services -- or door number two, prescriptive net neutrality rules under Title I.” Baker said she still has “serious reservations with how the Title II proceeding was initiated, and how it was apparently used as leverage to seek agreement on a Title I approach."

"If we decide to move forward with net neutrality under Title I, we must close the Title II docket,” Baker said. The commission must “provide certainty that we will maintain a pro-growth, pro-investment approach to broadband under Title I,” she said. “Keeping open the Title II docket, and the associated regulatory uncertainty, would undercut significantly the market certainty the commission now seeks.” What Baker called “the false choice between Title I and Title II” points up “broader process concerns that have been voiced this week” about the handling of the draft order, she said. “The core public comment” on potential net neutrality rules “occurred before dozens of closed door FCC meetings were held with a select handful of prominent special interest groups and large companies,” Baker said. Genachowski, who deserves credit for trying to make the commission work more openly, “delayed the December open meeting, and circulated the draft in the dead of night,” Baker said. “We are under no deadline to act, yet we proceed as if we were."

A senior FCC official is “hard-pressed to think of an issue” that’s “been more publicly debated and dissected than preserving a free and open Internet,” the person said when asked for a response to Baker’s remarks. “Over the last 14 months, we've had hundreds of meetings, held numerous public workshops, received more than 100,000 comments and even released a text of [earlier] proposed rules,” the official said. “The draft order was circulated to all of the commissioners a full three weeks in advance of the vote, a courtesy that Chairman Genachowski has consistently extended. So we are particularly perplexed by Commissioner Baker’s call for yet more time given that it took her less than 24 hours to read the order and publicly declare her flat opposition to the proposal.” Genachowski’s new approach to net neutrality continues to get “broad support” from “leading Internet and technology companies, founders and investors, consumer and public interest groups, unions, civil rights organizations, and broadband providers,” the official said. “It’s time to move forward."

The FCC’s latest effort for net neutrality rules is a “huge overreach in terms of authority,” Neil Fried, Republican counsel to the House Commerce Committee, told the event earlier in the day. Genachowski’s reading of the commission’s authority would significantly increase its regulatory power beyond the Internet, Fried said. He described Genachowski’s legal case for authority as an “elaborate bank shot.” Fried mentioned again (CD Dec 3 p2) the possible use of the Congressional Review Act to nullify the rules and ban similar ones. A resolution under that act would be filibuster-proof and require only a simple majority vote of each house of Congress, he said.

The FCC hasn’t made a clear case to congressional leaders about why net neutrality rules are needed now, said David Quinalty, Senate Commerce Committee Republican counsel. Net neutrality is not an issue that people are “clamoring for,” and rules shouldn’t be added, particularly based on “shaky legal ground,” he said. House Democrats can provide political support, said Amy Levine, House Communications Subcommittee Democratic counsel. Even with Chairman Rick Boucher, D-Va., on his way out of the House Communications Subcommittee, outgoing House Commerce Committee Chairman Henry Waxman, D-Calif., will provide important support, especially if Genachowski’s proposal is based on framework developed by Waxman for net neutrality legislation that never moved forward, Levine said.

Congressional leaders remain conflicted over how to make sure public safety benefits from the D-block, the Hill aides said. The Congressional Budget Office has already included an estimated $2 billion to $3 billion to be raised from incentive auctions, meaning lawmakers would have to find an offset in order to give the spectrum away for public safety use, Levine said. Leaving incentive auctions to the FCC gives the agency a fair amount of power in the proceeding, Quinalty said. There’s too much uncertainty how the agency would run the auctions, including the portion of proceeds that would go to the government, under a proposal from Senate Communications Committee Chairman Rockefeller Jay Rockefeller, D-W.Va. Plans for the D-block and incentive auctions should be decided separately before being put together, Quinalty said.

A Telecom Act rewrite effort doesn’t seem to be in the cards soon, Fried said. Problems should be identified first, and then Congress could move forward with “narrow legislation,” he said. The 1996 act may actually be good for business, since it’s so “obsolete” it allows companies to innovate, said Quinalty.