Culberson to Offer FCC Budget Amendment Blocking ‘Third Way’

"Part of our bill needs to say that none of the funds appropriated by this Act may be used by the FCC to regulate the Internet because it is not authorized by law,” said Culberson. Serrano said he wouldn’t support such an amendment because it would prevent the commission from fighting child pornography, among other pro-consumer efforts. “As long as [the FCC is] fighting on behalf of the American consumer” and shrinking the digital divide, the agency shouldn’t worry about legislators telling it to stop, Serrano said. “We're hopeful that they move ahead and do what they have to do, and then run into trouble with Congress if that’s going to happen on behalf of the American people."

Genachowski was pleased by the committee’s “overall support” for the FCC’s policy goals and direction, he later told reporters. “I obviously allow the committee and Congress to work on their responsibility.” The FCC will work with Congress and act as a resource, he said.

Culberson was the most persistent critic of the FCC proposal at the hearing. His questions seemed to rattle Genachowski and irritate other subcommittee members. “Tell me specifically in what court decision and where in the statute does it give you the jurisdiction to do what you're attempting to do?” asked Culberson. “It’s not there, is it?” If the FCC wants authority, it should ask the Commerce committees, he said. Ignoring the Comcast ruling and a decade of FCC decisions, Genachowski is telling the subcommittee the agency is “just going to do it anyway,” Culberson said. Genachowski objected: “No sir, that’s not what I'm telling you. … We're not going to regulate the Internet."

After again disputing the FCC’s power to reclassify, in a second round of questions, other members defended Genachowski. “You've asked this question several times,” said Rep. Chaka Fattah, D-Pa. Culberson protested: “But he can’t answer it.” Fattah replied, “Well, yeah, that’s fine, but we don’t badger witnesses.” Serrano noted that “many of us” feel Genachowski has authority to reclassify and should move ahead. Ranking Member Jo Ann Emerson, R-Mo., intervened. Regulating the Internet and “reclassifying the transmission component of broadband … are not necessarily the same thing.” Genachowski offered a meeting with commission staff to walk the committee through the legal details about why it may reclassify. Serrano accepted the invitation.

Emerson said she’s concerned the “third way” won’t withstand lawsuits, and an “onerous regulatory regime” might stifle investment and broadband expansion. A majority of the House has sent the regulator letters opposing the FCC’s plan, she added. Genachowski said he opposed burdensome regulation, and rather wanted to restore today’s “light touch” regime. The FCC chairman takes the Hill concerns “very seriously, and I share many of them -- all of the concerns that are in the letter.” The National Broadband Plan counts on much private sector investment, and just because Genachowski says it’s not regulatory overreach doesn’t mean the market will agree, said Emerson: “It’s all a question of semantics."

Genachowski said he’s open to any answer, whether from the FCC or Congress, that would restore the agency’s authority. “I am looking for a solution that allows us to work together to support our common broadband goals,” he said. “I've put on the table a solution” that finds a middle ground between doing nothing and applying all common carrier rules, and “that’s modeled on regulatory frameworks that work,” he said. “But I am focused on a solution, and if Congress were to provide a solution, that would be welcome."

Congress might not have taken up the issue of FCC broadband authority if the commission hadn’t put forward a proposal, said Rep. Debbie Wasserman Schultz, D-Fla. “Sometimes Congress leads, and sometimes we're pushed,” she said. She supports reclassification, especially if it enables the commission to tackle child porn, she said.

Genachowski gave a hazy forecast on when the FCC will resolve the broadband authority issue. The agency has to start the proceeding first, he said. The commission plans to vote on that at next week’s meeting. The FCC will “move forward simultaneously on key elements of the broadband plan,” he said. The regulator plans to spend time teaching legislators about the third-way plan, Genachowski told reporters. “The legal issues are complex,” but the process is just beginning, he said. “There will be an ongoing back and forth dialog and process of education, and I think that’s healthy."

"What the FCC is proposing to do is illegal, unauthorized and specifically prohibited by the [U.S. Court of Appeals for the D.C. Circuit] in an unambiguous, unanimous decision,” Culberson told reporters. Congress should give the agency “rifle-shot authority by statute to prohibit child pornography,” but nothing beyond that, he said. Culberson said he has support from other members, but declined to say who: “I've already begun to work it."

"It is disappointing that one lone congressman … would continue to echo falsehoods, propagated by AT&T and other opponents of even minimal FCC oversight, about the FCC’s plan,” Derek Turner, Free Press research director, said in a written statement. Matt Wood, associate director of the Media Access Project, agreed: “Use of the appropriations process to block FCC efforts to clarify its authority over broadband transmission would be disastrous for the future of public access to the open Internet. … Instead of allowing the Commission to address the dire needs of underserved communities, the proposed amendment would force the FCC into a series of legal battles over authority, denying the FCC the ability to develop sensible rules of the road for education, commerce, and free expression online."

PEG, Public Safety Issues Flagged

The subcommittee also grilled Genachowski on disputes about public, educational and governmental (PEG) channels and the commission’s plan to set up a nationwide public safety wireless broadband network, among other issues.

"Despite many petitions and comments in the record” about issues plaguing PEG channels, “the FCC has failed to fix the problem,” said Serrano. And the FCC’s broadband plan made no mention of PEG channels, he said. “This has to be dealt with fairly and strongly, otherwise we're going to have some very difficult times between this subcommittee and the FCC.” Genachowski said a PEG dispute involving Comcast had been settled, but the commission would “make sure” another dispute involving AT&T “is on the track to resolution.” The FCC plans to “honor the statute here and take this very seriously and make sure PEG isn’t left behind."

Genachowski should “make actionable his response that the Commission has the authority to protect and preserve PEG and his pledge to enforce the Cable Act by granting the [Alliance] petition challenging the statutory compliance of AT&T’s Channel 99 ‘PEG solution,'” said Debra Rogers, president of the Alliance for Community Media. The National Association of Telecommunications Officers and Advisors believes “the most prudent way for the FCC to follow through on Chairman Genachowski’s promise would be to grant [the Alliance’s] petition challenging AT&T’s ‘Channel 99’ maze of menus,” said NATOA Acting Executive Director Tonya Rideout.

Serrano and Emerson voiced concern many public safety groups oppose the FCC’s plan to build a nationwide interoperable network. The commission wants to auction off the D-Block and give the funds to public safety, but public safety groups have responded that they just want the radio frequencies. Emerson asked Genachowski to clarify why it would be better to auction the spectrum “while hoping the industry will work with them,” rather than giving public safety the D-Block and allowing them to establish their own relationship with industry. “I don’t know why we would pay $6.5 billion” for the network “if we could get it for free,” Emerson said.

If the FCC gives the spectrum to public safety and there isn’t a plan to build it out, “it doesn’t get built,” replied Genachowski. FCC staff concluded that “if the funding issue isn’t tackled directly,” the network won’t be finished, he said. It will take less time and money if the public safety network is built at the same time as commercial 4G networks, Genachowski said. He predicted build out would take “several years,” but less than 10. The pace would be set by the commercial industry, he said.

Culberson suggested that the FCC authorize broadcasters to be ISPs, providing Internet service over airwaves they're not using. The broadcasters could provide service to public safety, he said. Genachowski cited challenges with that approach because broadcasters provide only one-way service over airwaves. Culberson countered that the marketplace would solve the matter.