In a late morning session on Wednesday, legal advisors for all five FCC Commissioners discussed the Commission’s regulatory plans. Sherrese Smith, advisor to Chairman Genachowski, said the Chairman’s “Third Way” approach for grounding FCC authority in the wake of the recent Comcast decision represents a return to a bipartisan consensus about the agency’s proper role in overseeing the Internet.
Brad Gillen and Rosemary Harold, advisors to Commissioners Attwell Baker and McDowell, respectively, took issue with that statement. Gillen and Harold suggested that, contrary to Smith’s assertion, this is not a return to the status quo. Harold noted that no part of cable modem service was ever regulated under Title II, and that broadband ISP service offered by telecom companies was also never regulated under Title II. Harold said the FCC must prove: a) that the market has changed, and b) that “forbearing” from 42 of the 48 sections of Title II is necessary. Both, she believes, will be challenging. Gillen added that the two commissioners in the minority still believe that, notwithstanding the Comcast decision, there is a path forward under Title I. A possible advocate for Title II reclassification with less forbearance than proposed by the Chairman would be Commissioner Copps. His advisor, Jennifer Schneider, said Copps would consider forbearance but that he has had concerns about the use of excessive forbearance in the past.