Eshoo: FCC Can Find Title II-Lite Solution

Rep. Anna Eshoo (D-Calif.), who represents Silicon Valley (Google, Facebook), said Wednesday that the FCC should focus in on Sec. 202 of Title II as a part of a way to take a light-tough approach to reclassifying ISPS's under those common carrier regs, so light as to essentially forbear all but six sentences (Sec. 202).

Eshoo, the ranking Democrat on the House Energy & Commerce Committee, said in an interview for C-SPAN's Communicators series that one of the charges against Title II reclassification of Internet access is that it is a heavy handed and old fashioned approach. She said she was sensitive to that criticism and you "really have to be cautious about heavy-handed regulation.

She also said she recognized the investments made in broadband innovation, so she was "very sensitive" to the "heavy hand or regulation. But she said that for the sake of certainty for consumers and those innovators, there is a Title II "light touch" solution.

That is the argument that the FCC can forbear many of the 46 elements in Title II and focus on sec. 202. That section says it "shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage."

Critics of the Title II move have pointed to that section as argument that it is no guarantee against prioritization since it bars only "unreasonable discrimination."

She said if she were an FCC commissioner, she would focus on Sec. 202.

Her point appeared to be that the FCC could use Title II in a "very light touch" way that did not involve all the other common carrier regs on the books.

"I hope that the rhetoric doesn't prevail that you simply cannot go near Title II because it is old fashioned, heavy handed regulation. you don't need all of Title II," she said, in fact "you need very little of it."

Critics of Title II reclassification have argued that the FCC would have to levy a tariff on edge providers under a Title II regime, one they could not forbear.

Asked if she thought it was possible to forbear essentially all but Sec. 202, she said she believed so. "There are some people who say that one sentence out of Title II is not acceptable. I think that is an uninformed view."

She suggested that would be the wise and prudent approach and one that would give companies certainty and get the issue beyond lawsuits. That means no legal cloud hanging over the decision, which is why she thinks a Sec. 202-focused approach holds a lot of promise and is a "creative pathway."

Eshoo says she thinks the FCC's new Open Internet order should be extended to wireless broadband. The proposed new rules by FCC Chairman Tom wheeler tentatively concluded they should not, but that is still on the table, particularly given Wheeler's focus on the importance of mobile broadband.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.