McDowell Warns Against Regulatory Rubik's Cube Of Title II Reclassification

Some network neutrality fans have been pushing for the FCC to at least consider reclassifying Internet service to protect/establish its authority to create those rules, but FCC Commissioner Robert McDowell's message Friday (Jan. 29) was: Be careful what you wish for.

The FCC classified Internet access service as an information service (regulated under Title I of the Communications Act) rather than a telecommunications service under Title II common carrier regulations, which has mandatory access provisions. But during oral argument before the D.C. Federal Appeals Court in Comcast's challenge to the FCC's BitTorrent decision, judges raised questions about the FCC's authority to regulate the net absent clearer instructions from Congress. That prompted some network neutrality activists to suggest the FCC might need to shore up its ancillary authority with Title II.

But in a speech to a Free State Foundation communications policy conference Friday, McDowell, who used to lobby for Title II-regulated telephone companies, called Title II reclassifying a "regulatory Rubik's Cube" that could apply not only to ISP's but to any company that offers a voice application or an application ancillary to a voice application (like Apple or Google). "As the distinction between network operators and application providers continues to blur at an eye-popping rate, how will the government be able to keep up?" he asked.

McDowell said if the FCC did reclassify the service, it was headed for yet another court challenge. He said the FCC would have to be able to defend the decision with a record of evidence that is currently lacking. "So far, the record contains scant evidence that would help protect a Title II classification order from appellate scrutiny.

He said Title II regulation would also impose "government supervised network planning requirements," which he called a "slow-moving, top-down planning regime" applied to the lightning-fast, bottom up" world of Wikipedias.

In a separate panel at the Free State Event Friday, both National Cable & Telecommunications Association President Kyle McSlarrow and Verizon Executive VP Tom Tauke suggested that it was more appropriately the province of Congress to clarify what authority the FCC has to regulate in the Internet space. "It may well be that the simplest thing to do is the most obvious," said McSlarrow. "When in doubt, it is probably a place for Congress to step forward," he said.

The possible reclassification comes as the FCC is looking to codify and expand its network openness guidelines. It is also expected to touch on the issue in the broadband plan, while leaving the heavy lifting to that separate notice of proposed rulemaking.

McDowell said he was looking forward to seeing the details of that national broadband plan, now due to Congress by March 17. The commission's broadband team began what will essentially be daily briefings over the next couple of weeks with commissioners on various aspects of the plan.

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.