FCC Democrats Drive Net Neutrality NPRM Changes; ‘Springing’ Title II Idea Gains Support
Many of the changes to the FCC net neutrality NPRM in recent weeks have been driven by the Democratic commissioners, agency and industry officials said, as Chairman Tom Wheeler tries to secure the three votes he needs on the most intensely scrutinized item he has tackled as chairman. As the vote nears, some officials point to Commissioner Mignon Clyburn as the one in the driver’s seat, as Wheeler redrafts the rules to devote more space to the possibility of using Title II to achieve his net neutrality goals. The idea of a “springing” Title II authority has also gained traction in recent days, and is part of the NPRM discussion, industry observers said. That would invoke Title II as backup authority in case a court finds Communications Act Section 706 has fallen short.
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"I've never seen a chairman move so far for a single office before,” an agency official said of Clyburn. Other agency, industry and ex-agency officials have noted the leverage Democratic commissioners Clyburn and Jessica Rosenworcel have as Wheeler doesn’t have much wiggle room. Given that Wheeler needs three votes for the NPRM to be approved, any one of those three votes matters, said a former agency official who has been kept in the loop. So it’s not surprising Wheeler is trying to get the NPRM to be as close as possible to a final rule, the official said. An agency spokesman declined to comment.
"Net neutrality is an incredibly important issue to Commissioner Clyburn,” said Rick Kaplan, her former aide and now NAB executive vice president. “She made that clear when she first came to the commission. She fought hard for changes to the item. I would be surprised if she didn’t continue to do that. Frankly, from the chairman’s perspective, it’s really just a notice of proposed rulemaking. So asking more questions or things like that, those are easy gives, and it would be surprising if she didn’t get what she was looking for.”
The NPRM is now on its third draft, as it evolves to reflect the commissioners’ concerns, agency and industry officials said. “These middle-of-the-night negotiations are actually very productive,” said former Chairman Reed Hundt, a Democrat. “It’s the way the FCC ought to work. The missing piece here is the two Republicans, who should be participating and should be willing to give their votes for compromises. But as far as everybody can tell, they would rather stand on the sideline and criticize,” Hundt said. “This is the first time in 70 years -- 20 years of which I've watched and 50 years in which I've read about -- in which the minority party has not even tried to participate in major decisions.” Commissioner Ajit Pai has expressed his concern that Wheeler seems to be freezing Republicans out of the process. Wheeler circulated a draft to the Democratic commissioners a day before the Republicans got it (CD May 14 p1).
'Springing’ Title II
Columbia law professor Tim Wu recently floated the possibility of a “springing” Title II authority that could be invoked if Section 706 authority fails. House Commerce Committee ranking member Henry Waxman, D-Calif., suggested in a Wednesday letter to Wheeler that the FCC use its “undisputed Title II authority” as a “backstop” in a “contingent order” that could be drawn up in addition to the one using Section 706 authority. (See related story below in this issue.)
"Generally I think a main advantage is that it might avoid litigation in the first place,” Wu told us in an email Wednesday. Wu cited arguments he made in May 9 blog post in The New Yorker. “If we take political opposition as a given, the Commission’s best course is to pass tough rules under 706 with Title II as the backup, to insure the rules survive a court challenge,” he wrote (http://nyr.kr/REy84u). “This strategy may actually ward off court challenges, given that it presents the carriers with a kind of trip wire. Attempting to invalidate the rules with lawsuits could well reactivate the full authority of the Commission over broadband, with the carriers unable to blame anyone but themselves."
A springing Title II clause makes sense, said Andrew Schwartzman, senior counselor at Georgetown University Law Center’s Institute for Public Representation. “It adds some certainty.” To “work correctly, it must really make the necessary findings to support Title II reclassification,” Schwartzman said. “If so, it is really a face-saving way to get to the same result as a ’simple’ reclassification.”
"There shouldn’t be any Title II option in the FCC’s proposal, springing or otherwise,” countered Free State Foundation President Randolph May. “Title II would be a disaster policy-wise and legally problematic to boot. Indeed, although I initially offered some cautious conditional support for what I understood to be Chairman Wheeler’s ‘commercial reasonableness’ case-by-case approach under Section 706, in light of the mess that net neutrality has become in the last two weeks, I really think the commission should just stand down and defer to Congress."
Title III, which gives the commission regulatory authority over services that use spectrum, could be helpful to beef up the authority for net neutrality rules on the wireless side, said Matt Wood, Free Press policy director. Title III was listed as authority in the 2010 net neutrality order. As there is for wired, a subsection at the end of Section 332 also makes a “clear binary split” between common-carrier and private mobile services, he said: So Title III is a “solid basis of authority, but not necessarily to do anything like prevent blocking and discrimination until the FCC reclassifies."
"Title III doesn’t help you,” said Harold Feld, Public Knowledge senior vice president. “It is subject to the same common carrier prohibition as Section 706. Only Title II can give the FCC the authority it needs, unless Congress passes a law.”