Questions Raised About Civil Rights Provision Following Reclassification
The broadband reclassification proposal that FCC Chairman Julius Genachowski will circulate Thursday makes clear the agency won’t forebear from its responsibilities under Section 257 of the Telecom Act to file reports on reducing market barriers to small and minority-owned companies, a commission official said. Genachowski’s proposal is for the agency to reclassify broadband transport from a lightly regulated information service to a common carrier service under Title II and forbear from all but six of its 48 sections. Concerns have been raised that the commission would forgo enforcement of the civil rights provision.
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"How can you leave off 257?” said David Honig, president of the Minority Media and Telecommunications Council. “This is the best commission we're going to get … on civil rights."
The order probably will say “that there are some sections like 257 where we might not have the discretion to forbear,” an FCC official said. “You probably can’t forbear from writing a report that Congress told you to write."
A second FCC official noted that Section 257 is unique in requiring the agency to report on both telecom and information services. The section is one of a “handful” of provisions in Title II that “directly mentions information services,” the official said. The item probably will say that under what’s called the third-way approach, the commission “expects to keep writing the same reports it has always written covering telecom and information services,” the official said. “It’s a minor issue at best."
The FCC will remain obligated to comply with Section 257, regardless of the reclassification order, Public Knowledge Legal Director Harold Feld said. “It’s not an obligation imposed on providers,” he said. “To the extent the FCC wants to say ‘we won’t use tools permissible under Title II to achieve the goals of Section 257,’ that’s a matter of policy, not a matter of forbearance. … Forbearance works on mandatory obligations on carriers. It is not a means of relieving the FCC of an obligation it has to report to Congress, such as Section 257."
Section 257 is a requirement on the FCC, not carriers, said Andrew Schwartzman, Media Access Project senior vice president. The questions are making “a mountain out of a molehill,” he said. The report concerns the “impact on market accessibility in telecommunications and information services,” he said. “It covers everything anyway."
Honig said the obligation under Section 257 trickles down to carriers. “Embedded in there are obligations to telecom, broadcast, cable and other services, because they have to submit data,” he said.