Upton On Title II: FCC, Don't Go There

Federal Communications Commission chairman Julius Genachowski's e-mailbox was getting hit with letters from the Hill Wednesday May 5 on both sides of the Title II broadband reclassification debate.

The latest comes from former House Telecommunications Subcommittee chairman Fred Upton (D-Mich.), still a senior member of that subcommittee, which oversees the FCC. He was warning the chairman not to reclassify broadband as a more heavily regulated Title II common carrier service, but leave it as a Title I information service.

Upton cites a 1998 report to Congress by the Clinton FCC that concluded that "when an entity offers transmission incorporating the 'capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information,' it does not offer telecommunications. Rather, it offers an 'information service' even though it uses telecommunications to do so."

In their own letter to Genachowski, a pair of top Democrats said Title II should be in the mix as the FCC tried to extend broadband to unserved and underserved users via the national broadband plan. But Upton said that while the FCC does need to focus on getting broadband to "unserved" populations, "it would be irresponsible to reverse the Clinton administration's proper classification of broadband services and deregulatory framework, which have been so successful in making broadband available to the overwhelming majority of Americans."

The debate erupted last month after a D.C. federal appeals court reversed the FCC's ruling against Comcast in the BitTorrent case and said the commission had not properly established its authority to regulate broadband network management.

That in turn raised the spectre of a "wild west" scenario where ISPs could block and degrade content with impunity. Genachowski has pledged to find the legal underpinnings for the commission's proposed expansion and codification of Internet openness principles and various elements in its national broadband plan. But he has yet to say where FCC lawyers plan to pin that authority.

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.