Genachowski Wants Extra Long Comment Period on Net Neutrality Rules
FCC Chairman Julius Genachowski is pushing consideration of controversial net neutrality proposals past the February commission meeting where the National Broadband Plan will be addressed, commission sources said this week. With the FCC’s two Republicans, Robert McDowell and Meredith Baker, expressing strong concerns about the proposals, long comment periods for a net neutrality rulemaking mean the commission can put off a fight until the broadband plan is approved.
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The order circulated internally by Genachowski late last week allows 70 days for comments and 50 for replies. But the comment cycle won’t start until the rulemaking notice is published in the Federal Register, effectively pushing the reply deadline into March or later. Different sets of FCC aides are working on net neutrality and the broadband plan, a commission source said.
“It is not a surprise, as the FCC staff have been pretty open about trying to keep this issue out of the National Broadband Plan for fear it will overshadow all the other elements in the plan,” said Public Knowledge Legal Director Harold Feld. “What really matters is that the commission act quickly once the comment cycle closes. The FCC is not starting from a blank slate here, which makes charges that the FCC is rushing to rulemaking pretty absurd. The FCC has two relevant open dockets: The broadband industry practices NOI, which was explicitly designed as a precursor to a network neutrality rule if the Commission found a need, and the Skype Petition, which would apply the existing policy to wireless.”
The commission also has an open further notice of proposed rulemaking issued after it adopted the uniform wireline framework in 2005 after the Brand X decision, Feld noted. “For something this big, it makes sense to give everyone time to assemble their best case when presented with a specific rule proposal. That enhances legitimacy and makes for a better rule. But dragging on interminably after the comment cycle closes will prolong uncertainty in the industry and invite all manner of insider influence-peddling.”
Delaying consideration past February makes sense politically, said Paul Gallant, a Washington Research Group analyst. “The chances of the FCC reaching consensus on the Broadband Plan are much better without net neutrality in the mix.”
“As a matter of sound decision making, there is no way the FCC should consider net neutrality until after it formulates a broadband plan,” said Randolph May, the Free State Foundation’s president. “The agency needs to concentrate on the broadband plan and Universal Service Fund/inter-carrier comp reform before it even considers net neutrality, which is more a political slogan than anything else.”
NetCompetition.org Chairman Scott Cleland said there’s no hurry for the commission to complete work on tougher net neutrality rules. “The FCC should go very slowly and deliberately in any potential net neutrality rulemaking, given that the apparent justification for new formal net neutrality rules is that 15-year old competition policy has failed and that the market is allegedly unable to ensure consumer choice,” he said. “What the FCC is contemplating could be single biggest reversal in U.S. communications policy since Congress abandoned monopoly regulation in favor of market competition in passing the 1996 Telecom Act.”
“Based on his speech out here, openness is clearly a priority, but he recognizes the challenges and complexities of the wireless context,” said a wireless attorney at the CTIA conference in San Diego. “He seems to be focusing on the bigger picture issues first, while laying the groundwork for specific action items.”
“We haven’t seen the order yet. If true, we are thrilled with this timeline put forward by the chairman,” said Markham Erickson, executive director of the Open Internet Coalition. “We look forward to this process -- and the certainty the rulemaking will provide to the Internet marketplace.”
It’s a long comment cycle, “but this is a complex issue, so that’s a good thing,” said a wireline industry source. The FCC may need extra time because much of its resources are being devoted to the national broadband plan, said President Curt Stamp of the Independent Telephone & Telecommunications Alliance. Spending too much time on net neutrality now could hurt the quality of the [broadband] plan, he said.
An FCC official said staff on the broadband plan and net neutrality generally don’t overlap. There may be some coordination, but broadband plan coordinator Blair Levin’s team didn’t include some aides who have been working on neutrality a long time, the source said. It appears that the chiefs of the Wireline and Wireless bureaus are heading up the neutrality investigation, the source said.
In his speech at the CTIA conference Wednesday, Genachowski emphasized the importance of the commission’s setting rules that end “uncertainty” about an open Internet. “Later this month, I expect that the FCC will begin an open proceeding to explore how best to do so,” he said. “The goal of the proceeding will be to develop sensible rules of the road. Rules clear enough to provide predictability and certainty, and flexible enough to anticipate and welcome ongoing technological evolution.” He added, “Our goal is to empower innovators, not lawyers.”