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Clyburn Defends Title II Reclassification

Democratic FCC Commissioner Mignon Clyburn delivered a ringing defense of FCC Chairman Julius Genachowski's proposal to reclassify broadband under Title II. Given fellow Democrat Michael Copps' longstanding support of Title II classification, the chairman would seem to have solid support for proceeding, even in the face of some strong push-back from Congress.

"To me, it makes sense given the hand we were dealt by the D.C. Circuit back in April, and it is the most efficient and least burdensome way to expeditiously address some of the most pressing challenges in the telecommunications sector today," she said in a June 3 speech to media executives and reporters at a Media Institute luncheon in Washington.

Clyburn took aim at criticisms leveled by ISPs and others that the proposal was applying old-style monopoly regs, that there was no major market shift that justifies the FCC's reversal of its decision to regulate broadband under Title I, and that it would create regulatory uncertainty.

She took them on in order, arguing that the first is false on its face ("the entire point of his approach is to avoid applying any such old-world rules," she said); that the FCC does not have to establish a major market shift to shift its policy, though she said the BitTorrent decision was just such a shift; and that there is no such thing as regulatory certainty under any regulatory regime, with "predictability" about the best that can be hoped for.

The chairman has billed his approach as a "third way" compromise between leaving broadband under Title I, and applying all four dozen Title II regs to broadband. His plan is to apply only seven of those regs, and forbear (agree not to apply) the rest.

In her speech, Clyburn pointed out that the wireless voice business has developed and drawn hundreds of billions of dollars in investment under a similar regulatory regime as the chairman's "third way." She also said that Title I classification hardly provides predictablility after the BitTorrent decision called that Title I authority into question. (The only certainty the decision provided, she added, was that "a large number of lawyers don't have to worry about job security.")

She said that while there have been complaints that the FCC could reverse its forbearance decisions, she has not heard similar complaints about that possibility in the wireless context. "This is significant because the Chairman's classification proposal is nearly identical to the regulatory regime under which wireless voice services live today," she said.

In fact she said, all she has been hearing about for her 10-month tenure, from both Democrats and Republicans, is the incredible growth and investment in the wireless sector, saying more than $240 billion was invested between 1998 and 2008 under a regulatory scheme similar to the one being criticized for potentially discouraging investment.

She said Verizon, AT&T and others have praised the wireless regulatory framework as a "light-touch" approach that preserved investment. "How is it that, on the one hand, these companies can praise the regulatory regime governing wireless, and on the other hand sound the alarm of 'uncertainty' for a nearly identical framework proposed for broadband connectivity? The level of uncertainty should be, at worst, equal," she said.

She gave a shout-out to proposals by top House and Senate Democrats to update the Communications Act to reflect the rise of broadband, but said Title II reclassification should continue apace.

Most House Republicans and over 70 Democrats have weighed in with the chairman registering either outright opposition or major concerns about reclassfication and its effect on jobs and investment.

"I take seriously all of the correspondence we receive from Congress," Clyburn told B&C. "I have met with some Members on the matter already and will continue to engage with our friends in the Legislative Branch to ensure that we move forward in a manner that is best for all Americans."

The FCC plans to start the reclassification process with a notice of inquiry launched at its June 17 meeting.

Responding to a question after the speech about the FCC's announcement of a public forum on the Comcast-NBC Universal merger in Chicago in July, Clyburn said she had already been hearing from some members of the public about hiring, procurement and programming concerns related to the deal.