ITU Plenipot Looms Large as Reclassification Debate Winds Down

Commissioner Robert McDowell warned Wednesday that if the FCC moves forward, it will provide support for countries that want to assert more control of the Internet in a way that would never happen in the U.S. “The effort for Title II classification at the FCC comes at a very sensitive time internationally as other countries across the world are preparing for the ITU Plenipot,” he said in an interview. “Efforts have been under way for some time to expand ITU, and therefore U.N., jurisdiction over the Internet. This has been a multi-year effort and, should the U.S. extend regulation over the Internet, other countries will see it as a signal that their efforts are legitimized.” The Plenipot is to be held in Guadalajara, Mexico.

"The United States has taken a position that the ITU does not have jurisdiction currently over the Internet,” said David Gross of Wiley Rein, the former State Department official who led the U.S. delegations to the last two plenipots. “The basis for that, of course, has been the distinction that we have traditionally made in the United States, more recently between information services and telecommunications. The ITU by the treaty that exists, and has existed for many years, has jurisdiction over international telecommunications. We have explained that the Internet is not telecommunications and therefore the ITU does not have jurisdiction over the Internet."

It will be difficult for the U.S. to draw a distinction between that traditional U.S. stance and its limited move to reclassify broadband, Gross told us. “Other countries, which everyone recognizes are watching this debate very closely, would, if they see the FCC asserting more activist regulation over aspects of the Internet, take that as a signal that they too can be more activist with regard to Internet regulation,” he said. “Under their regimes, there will be no need for them, at least in their own view, to be as careful as the FCC in its notice purports to be. So I think there are a lot of reasons to be very concerned about the technical [aspects] and optics associated with this issue.” While U.S. regulators want to see free flow of information across the Internet, with very limited exceptions, “that’s certainly not true in much of the rest of world,” he said. “I think many countries would see our actions here as being a green light to allow them to take action that would be antithetical to our interests. That can happen both by individual countries but also through multilateral organizations."

The London-based GSM Association raised similar concerns in a recent filing at the commission in the broadband reclassification docket, asking the agency to consider the international implications of its actions. “Irrespective of the Commission’s action in the present proceeding, the scope of the ITU’s authority over the Internet, if any, is already likely to be a hotly debated topic at the upcoming ITU Plenipotentiary Conference … and the World Conference on International Telecommunications in 2012, where the International Telecommunications Regulations will be subject to revision for the first time since 1988,” the group said. “Already, some ITU member states have submitted proposals for the 2010 Plenipotentiary Conference that would expand the ITU’s mandate to include information and communication technologies as well as cybersecurity, if adopted."

If the FCC reclassifies broadband transport as a more regulated common carrier service “even in an assertedly limited fashion, and thereby expanding its own regulatory authority over the Internet, the Commission will strengthen the case for proposals such as these and undermine the persuasiveness of the U.S.’s opposition to such international regulatory overreach, which has been a hallmark of U.S. international telecommunications policy for over two decades,” the GSMA said. The actions of the FCC are being watched closely by regulators everywhere, the group said. “Reclassification will be seen as a significant shift in the U.S. administration’s perspective about Internet regulation, towards a policy that more actively interferes with free market relationships."

"While the domestic implications of how policymakers and/or the courts ultimately come down on broadband framework stand front and center for industry, investors, consumers and others in the U.S., international implications cannot be entirely ignored,” said Jeff Silva, analyst at Medley Global Advisors. “Foreign regulators monitor and are ever mindful of telecom regulatory activity in the U.S., sometimes emulating to varying degrees our regulatory structure and policies. And sometimes not. The U.S. does not operate in a vacuum, and its actions can have consequences beyond our borders.” Silva said Internet regulation remains a “prickly issue,” but “the notion that an FCC broadband framework ruling might translate into a threat to global Internet freedom appears to be a bit of a stretch at this point.”