ISPs Back Hill Action on FCC Broadband Authority

Time Warner Cable wants a “fourth way” -- Congressional action, said Steven Teplitz, senior vice president of government relations. Genachowski’s “third way” combines the flaws of a fully Title I or Title II approach, and would require “legal gymnastics” to implement, Teplitz said. When a court blocks a government agency from doing what it wants, “the right and proper thing for that agency to do … under our Constitution is to go back to the United States Congress and seek a legal clarification,” agreed Jim Cicconi, AT&T senior executive vice president of legislative affairs. The agency should “show some regulatory humility on this question, and defer to the Congress."

Legislative action could occur this year or early next, Cicconi told reporters afterward: “It’s certainly within any sort of timeframe that the FCC itself could act.” That some senators and a majority of the House have written the commission saying they believe Congress and not the FCC should act shows that near-term Congressional action is possible, Cicconi said during the discussion. The FCC had argued that Congress wouldn’t want to revamp telecom laws soon enough, but the Hill letters refute “the FCC’s logic in rejecting the option of going to the Congress,” Cicconi said. The November election isn’t likely to result in a Congress less willing to assert its authority, because there’s a “clear bipartisan majority” in the House that wants the FCC to defer to Congress, Cicconi told reporters.

BitTorrent would “like to find our own third way” to avoid both heavy-handed regulation and discriminatory practices by ISPs, said Klinker. It’s best to address problems within the industry using technology whenever possible, he said. BitTorrent worked with ISPs without government intervention to address network congestion by developing a new protocol that automatically yields to applications that need the bandwidth, Klinker noted. There has been some customer backlash, but BitTorrent plans to “soldier on to mitigate and address all of the concerns of the users” and the ISPs, he said.

There’s a role for “industry-based self-regulating principles,” no matter what policy approach is taken, said Klinker. Principles could foster dialogue and answers “that are in the best interest of consumers.” There’s a “strong need for transparency” if that’s to work, he said. Rules related to confidentiality may be needed since an ISP may be uncomfortable saying publicly that its network is congested, he said.

Other panelists from think tanks and academia agreed the answer is legislation and industry self-regulation. Legislation is the best way to restore certainty, so the FCC should do “exactly nothing,” said James Speta, a professor at Northwestern Law School. Nothing about Genachowski’s “third way” is light-touch regulation, and there’s growing consensus that it’s the role of Congress to define the FCC’s authority over broadband, said Free State Foundation President Randolph May. May wants Congress to set up an adjudicative process at the FCC through which the agency could review and take action on “fact-based complaints,” he said.

Government shouldn’t set up or control the industry self-regulatory body, said Speta. “We are trending in the direction of this happening organically.” The rise of self-regulation is partially because the Internet is maturing, and partially a reaction to the possible “regulatory threat,” he said.

Policymakers shouldn’t force the Internet into the mold set up for phone networks, because they are very different technically, said Richard Bennett, a network engineer and research fellow of ITIF. “We need to sort of back off of the obsession that the net neutrality move has brought with discrimination and anti-discrimination rules, and think about the problem from the standpoint of social utility.”