Treat Wireless Same as Wireline in Reclassification, Public Interest Groups Say

"We are perplexed as to why the FCC’s announcement seems to contemplate a separate treatment for wireless networks under the law,” Free Press said in a written statement. “All of the reasons that consumers need protection in the wired broadband market apply equally to wireless. The chairman has made wireless broadband the cornerstone of his National Broadband Plan, and re-establishing the FCC’s authority over all forms of Internet access is critical to the Plan’s implementation.”

"The press release was based on what we have seen to be special treatment that the wireless industry has been getting over the past year and a half,” Free Press Policy Counsel Chris Riley said in an interview. “In some ways that is deserved, because wireless is a burgeoning industry. But in others, from the consumer’s point of view, there are a lot of problems with the market right now. The Wireless Bureau just put out the wireless competition report, which for the first time in eight years did not say this is a competitive market. … We're not seeing a lot of immediate action on the FCC’s part to remedy that.”

Riley said he understands that the agency wants to ask a wide array of questions in the notice. “There’s a difference [between] something being legally on the table and the FCC considering wireless to be fundamentally different from a technological perspective."

Public Knowledge representatives, meanwhile, met with Wireless Bureau Chief Ruth Milkman, Wireline Bureau Chief Sharon Gillett and others at the FCC to raise concerns about wireless and wireline being treated differently in the reclassification plan. “The Commission will face serious difficulties if it leaves wireless broadband under Title I but reclassifies wireline in Title II,” Public Knowledge argued, according to an ex parte letter. “For example, if the Commission takes the position that wireless and wireline are sufficiently different from one another to justify separate classification, it will have a harder time defining them as part of the same market, such as in merger analysis, and it may not be able to require Form 477 reports from wireless operators. And leaving wireless broadband out of Title II could jeopardize the use of the Universal Service Fund to promote wireless service."

"We think that the right approach is the approach they took in the open Internet proceeding, where they said, ‘We are going to start with the presumption that we're going to treat these two services the same, but the application of what it means to be reasonable in the network management context would be different,'” Harold Feld, Public Knowledge’s legal director, said Friday. “We have said you should do the same thing here. You should treat the two services the same, but application of [Sections] 201 and 202 and what constitutes reasonable in the context of 201 and 202 would be different based on the … technology."

Instead, the FCC wants to seek comment in a notice of inquiry that is “framed as neutrally as possible,” Feld said. “I understand the attraction of this. I understand that Genachowski really has prided himself on taking the position that we don’t pre-decide things and we're data driven and so forth.” Still, he said, the regulator has already recognized there are problems implementing the broadband plan under Title I, which is why Genachowski decided to pursue reclassification. “It seems to me you ought to start with that rather than pretending that we're starting with a clean plate."

A majority of House members, 248, now say they oppose reclassification of broadband transport under Title II of the Communications Act. Friday, House Commerce ranking member Joe Barton, R-Texas, and 170 other Republicans voiced their opposition in a letter to FCC Chairman Julius Genachowski. Including a previous letter from Minority Leader John Boehner, Ohio, and Minority Whip Eric Cantor, Va., that makes 173 out of 177 Republicans who oppose. Last week, Rep. John Dingell, D-Mich., and 74 other Democrats also voiced opposition (CD May 28 p1). “The policy consequences of reclassifying broadband and regulating it under Title II could be severe: reduced broadband investment, less economic stimulation, and fewer jobs,” wrote Barton and the 170 other Republicans. Revision of communications policy is “a matter best left to Congress,” they said.

"In total, an impressive bipartisan majority of 248 members of the House have now stated their strong reservations with the regulatory direction in which the FCC is headed, and have articulated their belief that a change of this magnitude should only be undertaken with express Congressional authorization,” USTelecom said. Free Press said, “In putting their names to these letters, these members of Congress are taking it on faith that phone and cable companies have the best interests of Americans in mind -- and will protect Internet openness and promote universal access without oversight.”

"It’s not necessarily surprising FCC Chairman Genachowski would consider options for modulating broadband regulatory treatment of the wireless industry,” said Jeff Silva, analyst at Medley Global Advisors. “Going all the way back to his net neutrality speech at The Brookings Institution last September, and continuing to this day, the chairman has been generally consistent in acknowledging unique characteristics of mobile network architectures (including underlying spectrum constraints) that may defy a one-size-fits-all solution. The upcoming notice of inquiry on ’third-way’ broadband reclassification appears to reflect a continued appreciation that wireless has meaningful differences from other modes of broadband distribution.”