Cramming Rules Before FCC Also Focused on Wireless
The FCC’s pending cramming notice of proposed rulemaking is couched as a wireline order, but also has a major focus on wireless, said agency officials who have seen the item and industry officials who have been told some of the details. Some proponents of bill shock rules worry that the wireless parts of the cramming order could be the replacement for proposed bill shock rules. When Chairman Julius Genachowski said he'd circulate a cramming NPRM last month (CD June 21 p6), he also indicated that final bill shock rules were on their way.
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FCC and some public-interest group officials say the unexpected wireless focus of much of the cramming rules may be a sign that Genachowski is having second thoughts on bill shock. “That’s certainly what it looks like,” an FCC official said. A spokesman for Genachowski did not have a response by our deadline.
Public Knowledge Legal Director Harold Feld said his concern is that with legal challenges pending on data roaming and net neutrality orders, the FCC is getting cold feet on bill shock as well as Universal Service Fund reform, likely to raise similar jurisdictional issues. Public Knowledge had urged the agency to reclassify broadband as a Title II service before it approved its net neutrality rules to avoid questions of standing in light of the Court of Appeals for the District of Columbia Circuit’s decision in the Comcast case.
The fear is “the commission is trying to reposition in order to try to cover its bases on authority,” Feld said. “I hate to say I told you so … but this is exactly the problem we predicted would happen and we're seeing it in all these proceedings,” he said. “We warned them that if you were going to rely on ancillary authority and the information services classification that you were going to have serious authority issues for everything that you wanted to do because there will be somebody who objects.”
Carriers strongly opposed bill shock rules proposed by the FCC in comments filed at the commission last year, while public interest and consumer groups suggested the proposed rules don’t go far enough (CD July 8/10 p1). A wireless industry source said last week signs are that rules remain a strong possibility. “I hope it’s true, but I'm not sure we've dodged a bullet yet,” said an attorney who represents carriers.
"My general observation would be that the commission should not be afraid to take a robust view of its authority,” said Media Access Project Senior Vice President Andrew Schwartzman. “The worst case is that a court will say no, and that the fight would have to move to Congress. I don’t mind forcing legislators to decide whether they think the public is entitled to have meaningful information about what is on their bills."
"I don’t know what legal approach the commission will use on wireless billing transparency, but it would make sense to minimize the number of shots on goal that companies can take against Title 1-based rulings,” said MF Global analyst Paul Gallant. Medley Global Advisors’ Jeff Silva wouldn’t be surprised if Genachowski proved cautious in moving forward on both bill shock and AllVid, which seeks to connect a wide array of video devices to all pay-TV providers. “With House Republicans exhibiting vigilant oversight since taking control of the chamber earlier this year, Chairman Genachowski has to walk a fine line in how he fashions policies he may deem pro-consumer but that are regarded as unnecessary government overreach by GOP lawmakers."
Free Press Political Adviser Joel Kelsey encouraged the FCC to move forward on bill shock rules. Millions of subscribers would have “no one looking out for them, so long as the FCC continues to adopt such a narrow view of its mission,” Kelsey said. He said the “unintended consequences” of reclassification decisions made under Chairmen Michael Powell and Kevin Martin are now becoming apparent. “Chairman Genachowski’s Third Way proposal would have cleaned up the Bush-era mess and put the FCC back in the driver’s seat of consumer protection,” he said. “But instead, he buckled to industry pressure and has painted himself into a corner. … After the BP spill and the economic meltdown, you would think Washington would wake up and stop playing politics with consumer pocketbooks.”
"I don’t know whether the commission may be slowing down on bill shock, AllVid and the like because it is concerned that it is exceeding its authority and may get slapped down by the courts, or whether it is beginning to realize that imposing a boatload of new regulations is inconsistent with President [Barack] Obama’s talk about reducing unnecessary regulation,” said Free State Foundation President Randolph May. “I doubt at this point it is either one. But I would surely like to be proved wrong and see the commission take a regulatory pause.”