Powell: VoIP Driving Telecom Act Rewrite for the Better

“Just giving IP and Internet communications a place of its own is a great place to start” with a Telecom Act rewrite, Powell said. But he said just creating “another bucket is not the answer.” Two bills in the House would create a new regulatory category for IP services. The first, by House Commerce Committee Vice Chmn. Pickering (R-Miss.), focuses on VoIP. A 2nd bill, by House Commerce Subcommittee Chmn. Stearns (R-Fla.) and House Internet Caucus Co-Chmn. Boucher (D-Va.), would apply the new category to all IP-based services, including video. Asked about legislation after the speech, Powell said: “I like the Pickering bill.”

Powell said the Pickering bill tells potential VoIP providers: “'Look, here’s a thing called IP. Here it’s safe, it’s not regulated the same way, and anyone who can get there will have the same regulatory regime.” He expressed concern about a broader rewrite: “If you throw open the ‘96 Act, every Bell company and everyone else is going to target everything in the world they don’t want. Let’s not redo every single provision.”

The FCC has struggled to move broadband services into Title I for information services, where the regulation is lighter, while keeping the providers in their categories -- Title II for telecom and Title VI for cable, for example. But that has proven difficult, and at least one court has ruled that cable broadband isn’t an information service. On DSL, Powell said, “I get a lot of people who say, ‘Why classify it as an information service? Call it a telecom service and forbear.’ Well, those people have never worked at the Federal Communications Commission. We'd be forbearing for the next century… Why shouldn’t the government have the burden of proof?”

Powell’s words regarding Congress and the Telecom Act were much more blunt than those of Comr. Abernathy earlier in the day (CD Aug 24 p3). Congress “got it wrong on the first swing” regarding VoIP legislation, he said. The Senate Commerce Committee recently cleared an amended VoIP bill that most attendees here agree is dead for this Congress. But Powell said “they're going to get there… I love all the anxiety [VoIP] is generating, I love the hand-wringing, I love the screaming.”

The Telecom Act has caused the FCC innumerable problems in court, he said. “We have a 750,000 word text,” he said, that is “vague and inconsistent -- and that’s before you introduce the Internet and the way it’s graying legal questions.” He also said “I place a lot of the blame” on the courts, which he said aren’t giving proper deference to the FCC’s expertise. Instead, courts listen to arguments about congressional intent and have enough flexibility to “do what they'd like to see.” “How many times has a senator said ‘I'm the one who wrote that law,'” he mused, adding if every one spoke the truth “there would be 100 statutes.” “I hope when we do this next time,” Powell said of the Telecom Act rewrite -- that Congress considers “how do you have less words, and more clarity.”

From the audience, ALTS Pres. John Windhausen suggested a commission to examine a Telecom Act rewrite, modeled on those for military base closings and the Sept. 11 investigation. Windhausen suggested Powell could co-chair it with former Chmn. Reed Hundt. “What does it pay?” Powell asked. He then said Windhausen had made a solid suggestion. “It’s worth talking about can you come up with a process that writes better legislation.” Powell said the FCC has been working on legislation and has made recommendations to members of Congress requesting advice. But he added “this thing is still years away.”

Powell is “optimistic” the UNE-P final rules will be issued before year-end “because we do have a lot of record” in the rulemaking and the court has narrowed that record. He grew frustrated when asked by reporters about price increases resulting from the new rules, however. “All the rules are gone,” he said. “Everyone keeps forgetting that. That means the status quo is there are no rules. You can’t continue indefinitely to allow people to have elements that have been declared illegal.” The focus now isn’t on preserving access to elements; it’s the transition, he said. “We have taken an enormously bold step in allowing that to continue, an illegal model,” he said, but if “we're going to push the envelope, somebody is going to walk back into the D.C. Circuit and say we were too cute with it.” Asked whether the FCC has authority to continue access when the court rejected a stay of its decision, Powell said Bells had no right to complain because they offered to ramp out element access with CLECs. (Telcos filed a mandamus petition at the U.S. Appeals Court, D.C., asking the court to vacate the interim UNE order, see separate story).

Prompted by the Progress & Freedom Foundation’s Randolph May, Powell excoriated the sunshine rules. “I think I could write a book about the day-to-day difficulties of working at a Commission that works that way… Commissioners’ offices kind of become balkanized,” he said. “Any American with any common sense says, ‘Don’t you sit around the table and talk about it?’ No, we don’t.” He called the sunshine rules “very corrosive” but predicted they won’t go away: “Which congressman is going to stand up and say they're not for sunshine?”

Powell said one change during his 7 years at the FCC is that he’s less frequently called a “free-market right- winger.” When the moderator suggested he’s heard some people use that term regarding Powell, the chairman responded “I'm glad somebody did.”