FCC Release of Title II Order Unleashes Comment Deluge

The Federal Communications Commission's release of the Title II order Thursday (March 12) opened the floodgates as stakeholders rushed to react to the 400-page document and began to figure out the details, where at least the two Republican commissioners argue many devils -- rate regulation, unbundling and more -- lie in wait.

Republican commissioner Ajit Pai, who associated the Title II plan with President Obama, not FCC chairman Tom Wheeler, after Obama urged the Title II approach, said the order means rate regulation, the potential outlawing of pro-consumer service plans and higher broadband bills.

He said the order will drive smaller broadband providers out of business, thus reducing competition rather than fostering it.

He also said the order is illegal. "The FCC never proposed the rules being adopted, violating the APA’s notice-and-comment requirement," Pai argued, adding that in any event, "neither the text of the Communications Act nor FCC precedent allows the agency to reclassify broadband Internet access service as a Title II telecommunications service."

In his dissent at the Feb. 26 vote, along purely partly lines, to approve the new order, fellow dissenting commissioner Michael O'Rielly said the FCC was trying to "usurp the authority of Congress by re-writing the Communications Act to suit its own 'values' and political ends." He recirculated the dissent Thursday with the publication of the order, which also included a copy.

AT&T was among those not welcoming the order -- essentially the other shoe-drop in the Title II decision after the Feb. 26 vote.

“Unfortunately, the order released today begins a period of uncertainty that will damage broadband investment in the United States," said AT&T EVP Jim Cicconi. "Ultimately, though, we are confident the issue will be resolved by bipartisan action by Congress or a future FCC or by the courts.”

Broadband for America co-chairs John Sununu and Harold Ford Jr. agreed, with an emphasis on Congress.

"The release of the FCC's Open Internet Order rules reinforces what many already know: its the first step on a long road of litigation and uncertainty for America's broadband future. While we study the details, the fundamental fact remains that the only sustainable solution is Congressional action that codifies the open Internet principles and secures America's role as the global broadband investment and innovation leader," they said.

The problem with a congressional solution is that President Obama would almost certainly veto any legislation undoing Title II reclassification.

The Internet Innovation Alliance echoed the uncertainty and legislative themes.

“Market uncertainty accelerates today with the release of the FCC’s decision to impose public utility regulation on the Internet," the group said. "Long drawn out legal challenges to the agency’s embrace of Title II regulation without clear statutory authority now await the Internet ecosystem. Yet, Congress can still rescue the nation from this fate by crafting a non-partisan and long-lasting legislative solution that would preserve and maintain an ‘open Internet’ without the burdens of utility-style regulation."

Ditto the Information Technology and Innovation Foundation.

"It is unfortunate to see the Commission forging ahead with an Order so fraught with legal challenges and political opposition while Congress is actively looking for a compromise that would put open Internet regulations on firm footing," said ITIF telecom policy analyst Doug Brake.

The Republicans who introduced network-neutrality legislation, though it remains partisan, also weighed in.

“The world finally gets to read and understand just what the White House, acting by proxy via a partisan FCC vote, has done to impose the federal government’s heavy hand to regulate the Internet as a utility," said House Energy and Commerce Committee chairman Fred Upton (R-Mich.), Senate Commerce Committee chairman John Thune (R-S.D.) and House Communications Subcommittee chairman Greg Walden (R-Ore). "We look forward to working our way through the 300+ pages of this Washington manifesto. Our six-page draft legislation could prevent abuses and promote robust Internet investment – all without the overreach included in the FCC’s order."

But that bill, as proposed, would block FCC imposition of Title II and limit the agency's use of Sec. 706 authority to regulate broadband, both nonstarters with key Democrats.

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.