Lawmakers Accuse FCC of Hypocrisy on Internet Regulation

As the Federal Communications Commission presses ahead with a number of initiatives to improve competition and service in the broadband arena, House lawmakers seized on the opportunity of an oversight hearing to revisit the most controversial regulatory effort the agency has undertaken during the Obama administration.

The issue dates back to the FCC’s work beginning in 2009 on the ever-contentious matter of net neutrality. Before the agency finally passed a set of rules prohibiting Internet Service Providers from blocking or degrading traffic on their networks in December 2010, FCC Chairman Julius Genachowski had proposed reclassifying broadband as a so-called Title II service under telecommunications law, a designation that would clarify the commission’s legal authority to regulate the sector.

[Related:U.S. Lawmakers Blast U.N. for Internet ‘Powerplay’]

The 2010 order did not include the Title II reclassification, but it drew the ire of the two Republican commissioners, who both voted against the measure. It was roundly condemned by GOP lawmakers, including many who serve on the Energy and Commerce Committee’s Subcommittee on Communications and Technology, which convened Tuesday’s oversight proceeding.

Verizon and MetroPCS have sued to overturn the FCC’s net neutrality rules, and the agency has kept its Title II reclassification proposal open, which critics have argued stokes uncertainty among broadband providers and chills investment. At one point in the hearing, Rep. John Shimkus (D-Ill.) asked Genachowski about the oft-repeated line of net neutrality opponents that the regulations amount to an effective government takeover of the Internet.

“I’ve heard that concern but I don’t share it,” Genachowski replied. “I believe very strongly in Internet freedom. A clear and consistent position — no gatekeepers to the Internet, public or private.”

Genachowski said he intends to keep the Title II docket open to continue to invite comments, and that it would be “unusual” to close the proceeding.

Some GOP lawmakers and officials have equated net neutrality rules to an effort percolating in the United Nations that would grant the organization’s International Telecommunications Union (ITU) authority over the global Internet. That proposal has been universally panned by the administration and lawmakers on both sides of the aisle, but net neutrality critics have argued that it is inconsistent to support one form of Internet regulation while rejecting another.

Count among those, FCC Commissioner Robert McDowell, who distanced himself from Genachowski’s response to Shimkus’ question.

“I would disagree,” McDowell said. “Whenever I speak to international audiences this comes up as an issue: Isn’t the United States being hypocritical opposing ITU regulation of the Net but at the same time wanting to go into this space and regulating Internet network management?”

Last month, McDowell delivered a speech to the Italian parliament expressing U.S. opposition to the U.N. proposal.

To be sure, net neutrality is on the back burner at the FCC, and will likely remain so until the agency defends the rules in court. In the meantime, the commission is forging ahead with a variety of other ambitious undertakings, chief among them drafting rules for a new set of spectrum auctions that Congress recently authorized.

The law directs the FCC to conduct its auctions, which would transfer spectrum from television broadcasters to mobile broadband operators, within three years. Those proceedings will include so-called incentive auctions, through which broadcasters who give up their spectrum licenses would receive a portion of the revenue from the auction. But given the surging consumption of mobile data, the commissioners told the House panel that they will need additional mechanisms to bring more spectrum online.

“I do not believe that incentive auctions alone will handle spectrum crunch,” said Commissioner Jessica Rosenworcel, one of two new members of the FCC who recently won confirmation by the Senate after a long delay. The other new conferee, Ajit Pai, also appeared at Tuesday’s hearing along with the other three members, marking the first oversight hearing of the reconstituted agency.

The commissioners expressed support for methods intending to wring more use out of finite spectrum resources, including spectrum sharing, new efficiency technologies and opening new bands for unlicensed uses.

But a satisfactory resolution of the spectrum crunch will almost certainly require cooperation from the largest single spectrum holder — the federal government, which is estimated to hold about 60 percent of high-quality spectrum, according to McDowell.

Cataloging that spectrum, much less repurposing it for commercial broadband, is a daunting challenge, made all the more difficult by the secretive nature of the projects supported by those segments of the airwaves, many of which are overseen by military agencies.

“If Congress wanted to take leadership to get the executive branch to relinquish more spectrum for auction I think that would be terrific,” McDowell said, though he suggested that any effective effort to inventory and repurpose government spectrum would only come in response to an executive order from the president.

In addition to its work on spectrum, the FCC is also attempting to overhaul the Universal Service Fund, a telecom subsidy, and establish a nationwide, interoperable wireless network for public-safety workers.

The commission is also examining special access rates, the wholesale fees that carriers pay for transmission of their traffic, a market dominated by AT&T, Verizon and Quest.

Consistent data about the special access market is famously difficult to come by. In the policy debate, buyers and sellers routinely cite different statistics. Genachowski said that he plans to bring an order before the commission to compel industry members to submit thorough data about the conditions of the market, which the agency would then use to inform any rulemaking proposal.

Kenneth Corbin is a Washington, D.C.-based writer who covers government and regulatory issues for CIO.com.

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