Clyburn Defends Genachowski on Reclassification, Says FCC Can Act
FCC Commissioner Mignon Clyburn defended the broadband reclassification approach of Chairman Julius Genachowski, contending fears that it would create regulatory uncertainty are vastly overblown. Forbearance has worked in wireless, with companies including AT&T and Verizon supporting that approach, and it can work for broadband transport, Clyburn said. The agency can act on Genachowski’s plan to apply some sections of Title II to broadband transport while forbearing on the other parts, even as Congress looks to rewrite the Telecom Act, she told a Media Institute luncheon audience Thursday. She took some pot-shots at spending on lobbying, the relationship between FCC and industry and some carriers’ complaints about regulatory uncertainty.
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"There is no doubt in my mind that we should move forward with the chairman’s plan while Congress ramps up its process,” Clyburn said. “The committee chairmen have told us as much. They have made clear that these processes can be complimentary.” She agrees with industry that there’s uncertainty on “the timing of congressional action in this arena."
The purpose of her speech, Clyburn said, was to knock down common misconceptions about Genachowski’s reclassification. “The three leading themes that appear to have emerged are: (1) The FCC should not embrace an old-style regulatory model created in the first-half of the 20th Century for monopoly voice networks. (2) There has been no so-called market shift that is allegedly necessary to trigger the ability for the Commission to reclassify. And (3), what I will spend most of my time addressing today, that reclassification as described by the chairman would create a new and lethal ‘regulatory uncertainty.'"
There’s no such thing as an absence of regulatory uncertainty, because laws and rules can change any time, Clyburn said. “Beyond constitutional constraints, certainty is just not a reality under any regulatory framework. Nothing in administrative law prevents the commission from altering its course. And Congress can enact new legislation that completely undermines any existing framework. It might even do so in the near future.” She “simply cannot see how Title I offers any greater predictability than Title II,” the commissioner said. “Under the chairman’s proposal, we have both a clean process and, at worst, a colorable and straightforward argument in the courts."
Wireless carriers have voiced no qualms about forbearance being reversed concerning their services, though some worry that the proposed forbearance regarding broadband could be reversed, Clyburn said. She cited comments by AT&T, T-Mobile and Verizon on the CMRS regime and wireless market. “How is it that, on the one hand, these companies can praise the regulatory regime governing wireless, and on the other hand sound the alarm of ‘uncertainty’ for a nearly identical framework proposed for broadband connectivity? The level of uncertainty should be, at worst, equal."
The argument that the FCC can’t reclassify broadband because there hasn’t been a significant market shift doesn’t hold water for Clyburn. “As a simple matter of administrative law, there is no such requirement,” she said, citing the Supreme Court’s 2009 ruling in FCC v. Fox. “It does not take a lawyer to understand that.” The commission “must simply provide a reasoned justification and not simply change course without explanation,” Clyburn said. “It need not demonstrate some broad market shift in the process.” On the Comcast ruling by the U.S. Appeals Court for the District of Columbia Circuit, she said, “Even putting the legal aspects aside, if the D.C. Circuit did not just hand us a ’significant market shift,’ then I do not know what one is."
Clyburn closed her speech much as she opened it, taking jibes at the system of lobbying. “We must look beyond our cozy relationships with the people -- sometimes our friends -- who represent the companies we regulate,” she said. In conclusion, she said, “I have a feeling we will all be in touch considering the record-setting lobbying dollar figures that were recently announced for the first quarter. I guess in some sense I should be flattered: No one has ever spent that kind of money on me before.”