FCC Commissioner argues for delaying February net neutrality ruling

Let's wait to see how badly Congress does first

One of the FCC's five Commissioners has argued that the Commission should delay its net neutrality ruling until Congress has had an opportunity to devise new legislation aimed at resolving the issue.

Speaking on Wednesday at the American Enterprise Institute, Michael O’Rielly argued that "there are very good reasons for the Commission to take a step back and wait for that process [Congressional hearings and legislation] to work. The Commission is a creation of Congress and exists to carry out its laws. Accordingly, if Congress intends to act, then the Commission must defer to its judgment."

Despite several delays, O’Rielly says that "there is absolutely no reason why the Commission needs to rush to Order at this time. There is still no evidence of a market failure or harm to consumers. There are no pending claims of potential net neutrality violations. And there are a number of significant issues that have not received adequate consideration."

The FCC is expected to decide at its 26 February meeting how broadband providers are viewed under the law. It is widely expected that the Commission will decide to place them under so-called Title II legislation but with large parts of the 1934 law "forebeared" or removed to make it applicable to the modern world.

The cable and telco industries are vehemently opposed this approach, arguing that it will put unnecessary legal restraints on them and cause them to reduce their network rollout plans (although one company, Sprint, put its head above the parapet earlier this week and say it was for Title II and that it would not impact rollout). Working in concert with the Republican-held Congress, the industry has instead rapidly drawn up new legislation that would address some of the key net neutrality concerns but, critically, limit the FCC's authority.

That effort has also been accompanied by editorials and think-pieces arguing that the FCC needs to hold off making any decisions on net neutrality. If it were to do so, the Congressional push would largely be a "waste of time" as one Senator pointed out in one of two hearings held yesterday. Unsurprisingly, Commissioner O'Rielly, as a Republican, is for that political push and opposed to the plan due to be put forward by FCC chair Tom Wheeler around 12 February.

Forebear here, and possibly pay up

The reality is however that Wheeler has already done the maths and knows he doesn't need O'Rielly's vote to pass the rules.

What O'Rielly did raise in his speech was the issue of additional costs on broadband customers, arguing that the "universal service fee" charged by the FCC on other forms of telecoms would be applied to internet access, raising the costs to consumers for getting online.

The part of the Title II legislation that deals with universal service - section 254 - is expected to one of the very few that are retained under new FCC rules (our estimate is that only 6 of the 76 sections will not be forebeared).

The universal service fee is used to fund a variety of different programs aimed at spreading telecoms across the entire country and has been a political hot potato for over a decade. Another FCC Commissioner, Jessica Rosenworcel, told The Register late last year that she hoped the FCC would expand one part of those programs to help subsidize people's broadband (currently the Lifeline program can only be used to subsidize telephone lines).

That plan - currently under review by the Federal-State Joint Board on Universal Service - is vigorously opposed by O'Rielly: "I state to you unequivocally: the Joint Board should immediately cease any consideration along these lines and, if such a recommendation were to be offered to the Commission, I would oppose it vehemently."

He even goes so far as to say the whole Federal-State Joint Board should be disbanded if they go ahead with the idea: "Such an action would call into question the validity and value of the Joint Board and I would seek to eliminate any potential future Joint Board activity, including seeking possible statutory changes to strike its existence."

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