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Friends, Foes Weigh In On FCC Vote Into Broadband Transmission Classification Inquiry

Telegraphed for weeks, the FCC's vote on an inquiry into Title II classification of broadband (and other options) came as no surprise. As a result, reaction came thick and quick to the decision.

Ed Markey (D-Mass.), a fan of network neutrality regulations and FCC chairman Julius Genachowski's so-called "third way" approach to buttressing the agencys broadband oversight authority, called it a sensible and measured way of "carefully cutting the Gordian knot that has tied up our nation's broadband networks in regulatory uncertainty since the Comcast decision."

Gigi Sohn, president of network neutrality fan Public Knowledge, said the commission majority had acted with "uncommon courage" calling it a "simple, uncomplicated" move.

During the meeting, FCC commissioner Robert McDowell pointed out that a majority of the members of the House of Representatives, including 74 Democrats, had cautioned the chairman not to proceed with his third-way proposal.

Sohn chalked that up to the industry's lobbying muscle, suggesting that those legislators were either their dupes or prisoners of their pocketbooks.

"The Commission has been attacked unmercifully by multi-billion dollar companies using threats, intimidation and fabrications, among other distasteful tactics," she said. "They have used captive or unwitting legislators, in the face if common sense, to further their corporate goals at the expense of millions of Americans."

Dish Network was all backslaps and hoorays. "We strongly support chairman Genachowski's leadership in moving this critical process forward," said Dish chairman Charlie Ergen in a statement. "A sound legal framework is absolutely necessary to preserve a free and open Internet and encourage innovation and investment."

But there were plenty of discouraging words and predictions of cloudy forecasts in the wake of the 3-2 party line vote.
Republican Reps. Joe Barton (R-Tex.) and Cliff Stearns (R-Fla.) were ready with a letter to chairman of the House Energy & Commerce Committee Henry Waxman (D-Calif.) and Communications Subcommittee Chairman Rick Boucher (D-Va.) asking the Congressman to join them in trying to block the FCC. Barton is ranking member of the full committee, Stearns holds the same position in Boucher's subcommittee.

Barton and Stearns called for a hearing before the August break, saying the third way would "only cast prolonged legal and policy uncertainty over the future of broadband."

In expressing his support for Title II, FCC commissioner Michael Copps argued during the meeting Thursday that to leave it under the Title I regime undercut by the court's decision in BitTorrent would itself create prolonged legal uncertainty as case by case broadband oversight became, instead, a "court case by court case" process.

FCC general counsel Austin Schlick echoed that, saying it could be years or individual challenges vs. a single challenge to a Title II reclassification.

Another pair of Republican Representatives, John Shimkus (Ill.) and Marsha Blackburn (Tenn.), scheduled a press conference for Thursday afternoon to talk about their opposition to the chairman's third way proposal., whose members include the National Cable & Telecommunications Association (as well as Comcast, Time Warner Cable), the American Cable Association and, Verizon and Sprint, minced no words, suggesting the FCC was in the thrall of a certain search giant [the commission is not flexing its broadband reg muscle over content or applications].

"Make no mistake," said Netcompetition chairman Scott Cleland, "Google is the special-interest power behind the curtain pulling the strings here. This veiled FCC proposal is conveniently on path to deliver all the special regulatory favors Google has been seeking from the FCC in one rush-order, gift-wrapped package."

 "Everyone knows that Mr. Cleland stopped being a neutral analyst years ago and is now paid by Microsoft and AT&T to be a full time Google critic," said Mistique Cano, manager of global communications and public affairs for Google.

In its own statement, Verizon said the reclassification as a "terrible" idea. "The negative consequences for online users and the Internet ecosystem would be severe and have ramifications for decades," said former congressman Tom Tauke, now Verizon executive vice president for public affairs, policy and communications. "It is difficult to understand why the FCC continues to consider this option."

"Today's wireless and broadband markets require significant capital investment to anticipate and meet growing consumer demand," said Mobile Future in a statement. "Unfortunately, today's FCC action puts future growth and investment at risk and creates unnecessary turmoil in one of the key drivers of the U.S. economy. Mobile Future members include AT&T and T-Mobile.

"Today's decision by the FCC is troubling and, in many respects, unsettling," said AT&T' senior executive vice president Jim Cicconi. "It will create investment uncertainty at a time when certainty is most needed. It will no doubt damage jobs in a period of far-too-high unemployment. It will also undermine the FCC's own goals for the National Broadband Plan. A better and more proper approach is for the FCC to defer the question of its legal authority to the US Congress. A clear and bipartisan majority of Congress has urged this, and in his comments today the chairman did acknowledge Congressional action as an option. AT&T continues to feel Congressional action is far preferable, and far less risky to jobs and investment, than the FCC's current path."

In a blog posting on the eve of the vote, AT&T argued that the FCC's Third way is actually an attempt to go in two directions at once.
To argue for why it can change broadband classification without citing any major market shift or changed circumstances, the commission has cited the Supreme Court's decision in the Fox profanity case upholding its shift in indecency enforcement. But AT&T points out that the FCC has argued that the reasons its plan to not apply (forbear) most of Title II regs could not easily be reversed and more of those regs applied to broadband is because the FCC has said it would take a "painstaking process" in which it would have "to compile substantial record evidence that the circumstances it previously identified as supporting forbearance had changed."

AT&T senior vice president and assistant general counsel Paul Mancini, in the blog posting, said the FCC is trying to have its cake and eat it too.
And while the FCC has pointed out that it has not reversed any forbearance decisions, AT&T argues that as part of its national broadband plan, the agency is already contemplating reversing some forbearance decisions regarding AT&T and others' optical and packet-switched broadband transmission services.

"If the FCC were really serious about forbearance being a one-way street," wrote Mancini, "it would never have cast doubt on these forbearance decisions in the National Broadband Plan and it would immediately terminate the special access proceeding with respect to optical and packet-switched broadband transmission services."

"We are disappointed that the Commission continues to consider the application of monopoly-era rules for the U.S. mobile broadband ecosystem," said Steve Largent, president of CTIA, The Wireless Association. "Despite the fact the FCC has heard from more than half of the elected officials in Congress that this approach is wrong, the commission has chosen to ignore this diverse and bi-partisan group of senators and representatives from around the country. Instead, the