Net Neutrality, 10th Circuit USF/ICC Ruling to Remain on NARUC Radar

NARUC’s resolution said the group supports FCC work to create new net neutrality rules following the D.C. Circuit Court of Appeals’ partial strike down of the commission’s 2010 rules, and urged the FCC to use Telecom Act Section 706 as its main jurisdictional basis for writing those rules (CD July 16 p7). Comments were originally supposed to be due Tuesday, before NARUC had adopted the resolution. The FCC extended the deadline to midnight Friday after a deluge of comments shut down the commission’s electronic filing system (CD July 16 p1).

NARUC will suggest that the FCC “primarily rely on Section 706” but will say that Telecom Act Titles I, II and III “might provide additional authority,” Ramsay told us before filing the comments. “We'll say the FCC might have a little more difficulty relying on Title I in the wake of Comcast v. FCC, at least if this were to end up back in the D.C. Circuit again, but that from a legal perspective there’s no problem with Title II under appropriate circumstances.” NARUC may file additional comments before the reply comments deadline on Sept. 10, Ramsay said. The “prime purpose” of resolutions adopted at NARUC meetings is to guide the language used in any filings the group makes to regulatory agencies or Congress, so the net neutrality resolution “will guide what we say,” said NARUC Telecom Committee Chairman Chris Nelson.

NARUC’s comments will also mention the group’s past support for net neutrality in resolutions it adopted in 2002 and 2010, Ramsay said. That past support will likely make the FCC take more notice of NARUC’s filing among the million-plus other comments, said Vermont Public Service Board member John Burke, who sponsored the NARUC resolution. “They'll look at NARUC’s comments very carefully,” he predicted of the FCC. “When you're someone [who] really began the dance, they'll usually pay attention to you."

Net neutrality will continue to be one of the top telecom issues NARUC will follow in the months ahead of its main annual meeting Nov. 16-19 in San Francisco, Nelson said. Another topic focus will be possible appeals of the 10th U.S. Circuit Court of Appeals decision upholding the FCC USF/intercarrier compensation order (CD May 27 p1), he said. Industry participants said during a panel at the NARUC meeting that the 10th Circuit’s decision had damaged state regulators’ role on USF and intercarrier compensation, though some argued that role is not entirely gone (CD July 15 p4). “We have a great deal of concern with how that decision came down, so we'll be following the possibility of an en banc proceeding in the 10th Circuit or an appeal to the Supreme Court,” Nelson said. NARUC will also likely continue to follow and comment on the House Commerce Committee’s exploration of an update to the Telecom Act, he said.

Burke said he expects NARUC will “undoubtedly” talk more about the 10th Circuit ruling in the months ahead, but said he expects 911 reliability and issues with the rate floor will also be on the group’s radar. Burke said he expects many more telecom-related resolutions will be up for a vote at the San Francisco meeting than there were at the Dallas meeting, though he wouldn’t predict what issues will require a resolution at that point.