CPUC’s FCC Comments On Hold After Vote Switch
The California Public Utilities Commission put on hold Thursday plans to submit reply comments to the FCC supporting its net neutrality Title II NPRM. The decision came on a vote to overturn an earlier 3-2 decision to submit comments urging the commission to reclassify broadband as a Communications Act Title II service and use that authority in conjunction with other authorities as jurisdiction bases for new net neutrality rules. Commissioner Carla Peterman, who had originally voted in favor of reclassification, decided later in the meeting to officially abstain, tying the vote 2-2. The tied vote means any comments are on hold, a CPUC spokeswoman said. Commissioners Mike Florio and Catherine Sandoval had voted in favor of the staff’s set of recommendations, while Commission President Michael Peevey and Commissioner Michael Picker voted against them.
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Peterman and Sandoval had expressed concerns about portions of the FCC rulemaking they felt weren’t sufficiently clear. Peterman and Picker had also suggested the CPUC not comment until the commissioners could form a consensus. California’s status as the most populous state and one with a major telecom presence also led to industry opposition to CPUC’s moving forward with a recommendation for Title II reclassification.
If the 3-2 vote had stood, CPUC would have adopted its legal and communications staffs’ recommendation that the commission support FCC adoption of an “effective” no-blocking rule and oppose FCC adoption of its proposed “no commercially unreasonable practices” rule in favor of Title II’s “no unreasonable discrimination” standard. CPUC would have also said in its comments that the FCC must move for Title II reclassification if it’s to adopt an effective no-blocking rule. Federal courts would be likely to strike down a new no-blocking rule if the FCC uses other authorities as justification, said CPUC Assistant General Counsel Helen Mickiewicz. CPUC also considered alternative proposals that would have seen the commission support an effective no-blocking rule without recommending reclassification and support the proposed “no commercially unreasonable practices” rule, said the staff memo outlining its recommended comments (http://bit.ly/1qNUDRH).
The CPUC would also have adopted its staff recommendation that it support FCC enhancement of its existing transparency rule, including reporting to the FCC about the CalSpeed application that the state’s consumers used to measure broadband upload and download speeds. CPUC would have also supported adoption of a reasonable no-blocking rule for the wireless industry.
Peterman and Sandoval expressed concerns about the vagueness of some portions of the NPRM, with Sandoval suggesting CPUC’s comments should seek FCC clarification on areas she felt were vague. Picker said he felt he couldn’t support Title II reclassification because it could have unintended consequences for industry innovation. Peterman and Picker suggested that the CPUC wait and file an ex parte letter once the commissioners reached a consensus on the Title II issue. Sandoval said the CPUC could file comments only on the less controversial recommendations and discuss net neutrality’s implications for California. Peevey said the CPUC should vote on only the staff recommendations, noting the FCC wanted “to hear from us on these big items."
Greenlining Institute Legal Counsel Paul Goodman said he had given “even odds” before the meeting that CPUC would vote for a reclassification recommendation, telling us broadband regulation is “politically charged” in California: “I half expected that they would put it on hold until the next meeting.”
The Telecommunications Industry Association took an interest in the vote, submitting to the CPUC an industry letter it had sent to Secretary of Commerce Penny Pritzker in opposition to reclassification (http://bit.ly/1ukSY8u). TIA decided to submit the letter to CPUC because the recommendations CPUC was going to vote on were “on point” with concerns raised in the letter, said Mark Uncapher, director-regulatory & government affairs. TIA took an interest in the CPUC proceeding in part because the telecom industry has a “substantial” presence in California, he said.