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Genachowski to Senate: No Network Neutrality Complaints So Far

FCC Chairman Julius Genachowski told a Senate Commerce
Committee hearing audience Wednesday that the FCC had not received a single
complaint in the six months since its Open Internet order went into effect, but
also said that if a court overturns it, he would urge Congress to codify it. He
would not rule out classifying ISPs as a Title II service if the court
overturned, but said he is on the record as saying "that it not the best

Senators rushed through their questioning of FCC
commissioners during the oversight hearing so they would not have to hold the
panel over while they voted on the floor, but Commerce Committee members still
hit on plenty of topics, including on the network neutrality.

Senator Jim DeMint (R-S.C.), who has pushed for deregulating
the industry and limiting the FCC's powers, said earlier in the hearing that
the FCC appeared to be taking preemptive regulatory strikes at anticipated

That prompted his question about how many complaints there
had been since the rules went into effect last fall. DeMint said he was
concerned that networks and content providers were being treated as government
property or services.

He said the network neutrality rules were just such an
example of preemptive rulemaking trying to determine how private companies
backed with private capital should be managed and priced. He said he was
concerned that the FCC would next be telling content providers how to run their

Picking up on the net neutrality theme, Sen. Patrick Toomey
(R-Pa.), asked if Genachowski would classify Internet access as a Title II
service if the court overturned its Open Internet order codifying the network
neutrality rules. The chairman said he thought the current framework was
working nicely and that he hoped that the court did not strike it down and that
if it did, Congress would move in swiftly to codify it. Pressed to answer the
question, he said it was not the "best idea."

The chairman also defended the FCC's ultimate approach -- it
had initially suggested Title II reclassification -- had diffused a radioactive
dispute and been supported by cable operators and other stakeholders. Cable ops
did tacitly support, or at least not actively oppose, the compromise. But all along
they said publicly that codifying the rules was not needed, and privately
suggested that they were acceding grudgingly to the less nuclear, not
radiation-free, option.

New Commissioner Jessica Rosenworcel said she agreed with
the chairman, but pointed out that the FCC has been reclassifying services for
a decade. Commissioner Robert McDowell, who advocates closing the Title II
docket, shot back that the FCC had never classified Internet access as a Title
II service, and added that leaving the docket open had "devastating"
implications internationally for the effort to push back on an ITU effort to
regulate the Internet.

Sen. John Kerry countered that the U.S. should be sending a
signal of openness to other countries. Kerry gave Genachowski a chance to pitch
what both he and Kerry see as the upside of the network neutrality rules, which
is that they provided regulatory certainty for investors and entrepreneurs.
Kerry asked how start-ups have been affected by the rules.

The chairman said that it has been essential, and that
predictability has translated to increased investment and innovation, as
evidenced by a booming app economy and double-digit infrastructure investment. Kerry
asked if Congress codify should codify the rules. "I would encourage
it," said Genachowski.

McDowell said he was wary about Congress stepping in,
particularly since it is still before the courts. He voted against the rules
and does not think the FCC had the authority to impose them.

As he did at his confirmation hearing last fall, new
Republican Commissioner Ajit Pai said he did not support Title II
reclassification, while Commissioner Mignon Clyburn joined Genachowski in
supporting the current model and leaving what the FCC should do if the court
overturned the order until that time.

Other highlights of the hearing:

Senate Commerce Committee Chairman Jay Rockefeller (D-W.
Va.) got all five commissioners to commit to not raiding the e-rate fund to
support digital literacy, something Rockefeller feared the FCC was planning.

Genachowski agreed with Sen. Kerry that a duopoly model of
wireless broadband was not a good thing. McDowell countered that some 100
million people, or about half, get wireless from someone other than the top two
(Verizon or AT&T), and that most people have a choice among five carriers.

Sen. Kerry said that a lot of good work had been done by the
commission and he did not want to see it get caught in the "partisan
crosshairs" of this Congress. He suggested a weakened FCC might pave the way for
unregulated communications behemoths to operate unchecked.