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Tauke: Congress Needs To Clarify Who, What, and When of Regulatory Authority

Verizon Executive VP Tom Tauke said Wednesday (March 24)
that the Communications Act no longer fits the digital space and needs a major
rethinking, including by Congress.  He
says the legislative body will need to step in and clarify the FCC's
jurisdiction over the Internet or whether the FTC or some other agency will
have the regulatory authority.

In a speech at the New Democratic Network in Washington, billed as a
major telecom address, Tauke said that there is a new sense of urgency on the
issue driven by efforts to seek new behavioral advertising rules across the
industry and the Comcast/BitTorrent case that has raised questions about the
FCC's jurisdiction in the Internet space.

If the court in the BitTorrent case decides that the FCC
does not have the authority under Title I information service regulations,
Congress will need to step in quickly, Tauke said.  He wants the legislature to be thinking in
broad terms.

Tauke said he understood that FCC Chairman Julius
Genachowksi will have a challenge if the court pulls Title I authority out from
under him, but said he would be surprised if the FCC tried to reclassify net
service under Title II (which has mandatory access provisions). If it did, he
added, it would wind up in court.

Tauke said that no one is suggesting the net should be the
wild, wild west. "We ought to have an Internet rule of law," he said,
adding that Congress should determine that rule and who should enforce it. He
also said that rule of law should apply to everyone in the Internet space, not
just the networks.

Now is the time for Congress to address the issue, he said.
But he said he was remaining agnostic about whether net regulation should be
taken away from or kept within the FCC.

"I guess the bottom line is that I don't think the agency at this juncture is important. What is important is what is the policy, what is the process of enforcing that policy, and can we get it in place promptly so that there is a rule of law that governs the space," Tauk said.

He said Congress can decide whether it is the FCC or the FTC or some new agency.

Tauke said it was time to rethink the regulatory framework for telecommunications, likening the Communications Act to the Winchester Mystery House, a Victorian mansion whose eccentric owner added on unneeded rooms and staircases to nowhere. He said telecom regulatory policy suffered the same fate, and that the national broadband plan was as good a tipping point as any for Congress to think about a more logical blueprint.

He suggested a more flexible approach to regulation, with industry forming advisory boards and decisions on things like reasonable network management made in real time rather than tied to regulations and rulemakings attempting to anticipate where the Internet was going to be in half a decade.

He invoked former Democratic FCC Chairman Bill Kennard's theory of light-touch, "first do no harm" Internet regulation, and suggested that telecommunications Hippocratic Oath had led to the private investment and innovation that was delivering broadband to 95% of the country.

But he also said the underlying statute of the Communications Act is "irrelevant" to the new telecom ecosystem. He pointed out that the 1996 update of the act could hardly anticipate the 400 million daily e-mails or 8.7 terabytes of video Verizon was dealing with every day.

Tauke said that the FCC's traditional process of fact-finding, notices for comment and proposals for rulemakings was fitted to expected outcomes that he suggested made no sense to preserve in regulatory amber in a marketplace moving at the speed of 1's and 0's. Instead of the traditional rulemaking process, he suggested a real-time, ongoing engagement of engineers and analysts to help make decisions based on the current trends and technologies in net management or behavioral advertising. He said those FCC analysts could be aided by voluntary industry forums who could provide their own advice and recommendations.

That tracks with at least one element of the FCC's network neutrality proposal, which talked about getting professional help--as in network engineers--to help make calls about what constitutes reasonable network management.

AT&T seconded Tauke's suggestion that Congress should be the one providing direction on Internet regulatory authority.

"If there are questions about the authority of the FCC in the Internet ecosystem, the proper answer is not for the FCC to get adventurous in interpreting its authority, as some are urging," said AT&T Washington Executive VP Jim Cicconi. "Instead, any question of the FCC's jurisdiction over the Internet should properly be referred to the Congress for resolution."