The USTelecom Association has brought in the big guns, hiring former Solicitor General Seth Waxman to head off a potential move by the Federal Communications Commission to reclassify broadband as a Title II telecommunications service like telephones.
"I'm not a telecom expert - or at least not yet," the Wilmer Cutler Pickering Hale and Dorr partner said in a conference call with reporters yesterday. Instead, his task was to look at the move “largely from an administrative law perspective – how much leeway an administrative agency has to make changes in the way it regulates without any statutory change or other indication Congress intended such a change,” he said.
Media watchdog and consumer groups are urging the FCC to reclassify broadband as a Title II service. Doing so would cement the agency’s authority to regulate Internet service in the wake of a D.C. Circuit decision earlier this month that has cast it in doubt.
On April 6, the court ruled in favor of Comcast Corp. that the FCC failed to justify it had ancillary jurisdiction to regulate the network management practices of Internet service providers.
The agency is currently considering new rules on net neutrality and has unveiled a comprehensive national broadband plan. After the Comcast decision, the FCC extended the deadline to file comments, posting more than 10,000 submissions on its website in the last two days alone.
Waxman’s April 28 comments on behalf of the broadband trade association stressed that reclassification “would surely be met with skepticism by a reviewing court, and the odds of appellate reversal would be high—particularly given significant industry reliance on the Commission’s prior, deregulatory interpretation of the same statutory scheme.”
“Administrative agencies are charged with implementing the law, not with assuming for themselves the legislative authority that the Constitution vests in Congress,” he wrote. “The Commission would be—for the first time ever and with no action by Congress extending a common carrier regime, designed for the monopolist telephone market of the early twentieth century, to a dynamic Internet marketplace.”
So what does Waxman think the FCC should do? “My advice would be to go to Congress,” he said. “There the various regulated entities on all sides would be heard.”
He also said that he didn’t read the D.C. Circuit opinion as “stripping the commission of its Title I ancillary jurisdiction... the D.C. Circuit itself in the last few paragraphs identified some basis for ancillary jurisdiction... the door is open.”