FCC Draft Says At Least Four Sections Give it Direct Authority on Net Neutrality
The FCC can impose net neutrality by directly implementing at least four sections of the Communications Act, under a draft of the order set for a Dec. 21 vote, according to agency, industry and public-interest officials briefed on the rulemaking. Several other parts of the Act are mentioned in the draft order as giving the commission authority, they said. With the sunshine period on the order set to begin Tuesday night under usual commission procedure, lobbying on the eighth floor continues by those supporting and opposing Chairman Julius Genachowski’s plan to adopt nondiscrimination rules without reclassifying broadband as a telecom service, filings in docket 09-191 show. Some companies and groups that support net neutrality rules but oppose reclassification suggested that they're dissatisfied with the draft.
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Sections 616 and 628 are cited in the draft as giving the commission authority to act, said agency officials and public-interest and industry representatives briefed on it. The provisions deal with video programming and are mentioned in the draft’s section on Title VI authority, they said. Section 616, added by the 1992 Cable Act, bars pay-TV providers from requiring an investment in a service such as a channel in exchange for carrying it or from exclusive distribution deals that hurt independent programmers. Section 628 of the 1992 Act bans unfair action against other programmers.
Also mentioned in the draft order is Section 706 of the 1996 Telecom Act (CD Dec 3 p1), the subject of a recent report to Congress saying as many as 24 million Americans lack access to broadband service, said officials in and out of the agency. Section 256 also is mentioned, industry and public-interest officials briefed on the report said. Those sections are said to be part of the draft order that discusses Title II provisions. There’s also a section in the order on Title III rules, agency officials have said. An FCC spokeswoman declined to comment.
The Wireline Bureau posted Friday more than 1,000 pages of documents in the docket, which it said should be entered into the proceeding’s record. The documents included academic studies, one co-written by Dale Hatfield of the University of Colorado, a former Office of Engineering and Technology chief; a filing from AT&T on wireless competition; and information on deep packet inspection (DPI) by network management service provider Allot Communications titled “Pushing the DPI Envelope.” The timing of the posting of the documents “gives the parties asking for a delayed vote ammunition,” a commission official said.
Free State Foundation President Randolph May has never seen a “data dump” of such “extraordinary magnitude” that came so soon before the Sunshine Act cut-off for FCC lobbying, the net neutrality rule opponent wrote. He counted 1,900 pages, which he noted weren’t indexed and were pasted together seemingly at random. The “last minute data dump” seems “to call into question the FCC’s commitment to operate in an open and transparent way -- in other words, in a way consistent with sound principles of administrative law and fundamental due process,” May wrote. It’s routine for the commission to place relevant materials into a docket, an agency official said of the documents.
A filing by NCTA laid out some sections that it hopes the regulator won’t rely on in the net neutrality order. Section 628(b) “cannot serve as a source of direct or ancillary authority for the Commission to impose any net neutrality regulations,” the group said. “By its terms,” the section “is limited to addressing unfair practices by cable operators or satellite cable programmers that prevent or significantly hinder the ability of multichannel video programming distributors” to provide “satellite cable programming,” it noted. “Video delivered over the Internet has not been -- and cannot be -- construed to be ’satellite cable programming.'” The regulator also can’t rely on Section 706(a) “as a basis for asserting authority,” NCTA said. The net neutrality compromise from outgoing House Commerce Committee Chairman Henry Waxman, D-Calif., “could be justified as reasonably ancillary to a number of the Commission’s duties under Titles II and III, provided that the order adopting the framework” doesn’t substantially change it, the association said.
Supporters of net neutrality oppose the order, from what they know of it, said a filing by Amazon.com, Dish Network, Free Press, the Media Access Project, Netflix, Public Knowledge, Skype and others. “Any rules adopted exclusively on the basis of Title I jurisdiction are much more likely to face rejection upon judicial review,” they said. “The Commission should, at the least, employ Title II as a basis of its jurisdiction.”