Broadband Reclassification: The Third Way or the Highway?

by on May 25, 2010 · 4 comments

The announcement yesterday from key Congressional Democrats of an effort to reform the Communications Act put me in a nostalgic mood. Here follows one of my longest efforts yet to bury the lede.

One of my favorite courses in law school was Abner Mikva’s “Legislative Process” course, which he taught while serving on the D.C. Circuit Court of Appeals and before his tenure as White House counsel to President Clinton. Mikva had previously served in Congress; indeed, one of the first votes I ever cast was for Mikva while an undergraduate at Northwestern University.

(It was a remarkable period at the law school. The year Mikva signed on as a lecturer was also the first year on the faculty for three professors just starting their academic careers: Larry Lessig, Elena Kagan, and Barack Obama. I took two classes with Lessig, including an independent study on the impact of technology on the practice of law, but regrettably none from the other two.)

There were two versions of the legislative process, Mikva made clear. The one we were learning–the one specified in the Constitution and the standing rules of the House and Senate—and the other kind, made up of byzantine posturing and back-room dealing.

I don’t consider myself an expert in either, but especially not the second kind, which seems to require living inside the Beltway just to follow.  And even then, I suspect, the participants always imagine themselves to be like Josef K in Kafka’s “The Trial,” where everyone believes they are the only ones who understand what is really going on.  (I read “The Trial” in another law school course, “Law and Literature,” taught by my future employer Richard Posner.)

“You know that there are so many various opinions about the procedure that they form into a great big pile and nobody can make any sense of them,” one character tells K.  “This judge, for instance, sees proceedings as starting at a different point from where I do.  A difference of opinion, nothing more.  At a certain stage in the proceedings tradition has it that a sign is given by ringing a bell.  This judge sees that as the point at which proceedings begin.  I can’t set out all the opinions opposed to that view here, and you wouldn’t understand it anyway, suffice it to say that there are many reasons to disagree with him.”

Bi-Partisan, Issue-Focused


Yesterday began one of the second kind of legislative processes, with the announcement from Senator Rockefeller and Rep. Waxman that they will soon begin a series of “bipartisan, issue-focused meetings” to evaluate changes to the Communications Act.

This announcement followed on the heels of a letter from 37 Republican Senators to FCC Chairman Julius Genachowski urging him to abandon his plans to reclassify broadband Internet access as a Title II telecommunications service, which Genachowski first proposed on May 6. Also on Monday, 74 Democratic Congressmen likewise urged the FCC to abandon its “third way” reclassification efforts. “The significant regulatory impact of reclassifying broadband service is not something that should be taken lightly and should not be done without additional direction from Congress,” the Democrats wrote. “We urge you not to move forward with a proposal that undermines critically important investment in broadband and the jobs that come with it.”

(It didn’t take a crystal ball to predict pushback from Congress on the FCC’s effort to end-run both Congress and the D.C. Circuit’s conclusion in Comcast v. FCC that the agency lacked jurisdiction to implement net neutrality rules, the major incentive behind the “third way” proposal. But for the record, I did predict it.)

My Complements to the Source


To recap, yesterday saw letters from Republic and Democratic lawmakers urging the FCC not to proceed with its “third way” efforts, and announcements from key Committee Chairmen of a plan to update the FCC’s organic statute, with an eye toward bringing it into line with a communications landscape greatly altered since 1996, the year the law was last overhauled.

One might imagine these maneuvers to be something other than a coincidence. Are they part of a coordinated effort by Congress to signal to the FCC a desire not to have the reclassification proposal brought to a vote by the full Commission? It certainly sounds like this is the end of the “third way.”

Well, maybe not. As Cecilia Kang notes in The Washington Post, the FCC had no comment about yesterday’s developments. But an article by Gauthem Nagesh in The Hill included this coda:

Update: A spokesperson for Sen. Kerry sends the following:

“Senator Kerry believes that this process is complimentary to the efforts at the FCC, not a substitute for them. The deliberative process, both here and at the agency, will help inform and enhance our respective responsibilities to write and execute law and regulation that encourages innovation, inclusion, and consumer protections.”

Kang’s article included a similar statement:

“A Senate staffer, who was not authorized to speak on the record, said the announcement is a recognition that current law doesn’t reflect the changing landscape of the Web- and mobile-centric communications landscape. The staffer said the move was meant to complement the FCC’s broadband reclassification proposal. The lawmakers don’t intend, as proposed by some network operators, to preempt the FCC’s plan.”

A bit of linguistic forensics suggests that the “Senate staffer” cited by Kang was almost certainly the same person as the “spokesman” for Sen. Kerry quoted by Nagesh. Note that the spokesman commits the common error of using “complimentary” (with praise) when he or she actually meant “complementary” (supplying mutual needs). The original posting of Kang’s article repeated the error in paraphrasing the staffer, though that paragraph was later corrected.

So at the very least Senator Kerry is signaling that the Congressional effort to review the Communications Act isn’t meant to block Genachowski’s moves at reclassifying broadband. Those statements came, however, after the original announcement. Was Kerry trying to clarify the day’s events or spin them?

At the end of the day (literally), I’m left with more questions than answers from what seemed like straightforward legislative process: Who is Sen. Kerry trying to communicate with here, and what is the real message? Is the “third way” dead on arrival? Is Congress hedging its bets? What kind of reform does the Senate have in mind?

Two more questions: Did anyone hear a bell ring? And does it matter?

Update:  see Declan McCullaugh’s excellent analysis of the day’s events at CNET.

  • sjschultze

    Larry, why does an announcement of public discussion and solicitation of input signal something other than what is “specified in the Constitution and the standing rules of the House and Senate,” and rather, “made up of byzantine posturing and back-room dealing”? If anything, the industry-penned letter making the rounds is an example of this, whereas the public drafting process is an example of your “first kind” of process.

    As for your theory that yesterday's announcement might signal some broader consensus by the congressional leaders against Genachowski's proposal, they have already made clear publicly their support for his approach.

    The fact of the matter is that the situation is quite clear. A majority of the Commission and the relevant Congressional leaders think that reclassification is legal and a good idea. Other constituencies don't. Everybody agrees that the Communications Act could be improved. There will be competing ideas about how to update the Act, with Adam and his crew arguing for an ex post antitrust-like approach and others arguing for a light-touch ex ante regulatory approach. The process of passing something will take awhile. In the meantime, we may be operating under the “Title II plus forbearance” regime.

  • Brett Glass

    I disagree with the comment just above. I predict that we will never actually operate under the “Title II plus forbearance” regime. If the FCC follows through with it, it will be challenged (and rightfully so!) in court — in the DCC and then again in SCOTUS and will be overturned. It will thus never actually take effect. But it would cause great uncertainty, and our country would suffer as a result.

    Despite the false alarms being sounded by Google lobbyists, such as Free Press and Public Knowledge (who are impatient to get the regulation that their client and ally Google desires), there is actually no urgency here. It would be best to proceed deliberately, if slowly, rather than hastily and unwisely. In short, the best thing to do would be simply to start the process of rewriting the law. But will the Democratic Commissioners recognize this? Will pride, partisanship, and unwillingness to change course propel them onward in this third (wrong) way? Or will Julius Genachowski have an epiphany and realize that proceeding, Quixotically, toward Title II reclassification would deeply hurt the country by killing broadband investment and competition, deterring deployment, and distracting the Commission from the positive things it can and should be doing?

  • sjschultze

    Larry, why does an announcement of public discussion and solicitation of input signal something other than what is “specified in the Constitution and the standing rules of the House and Senate,” and rather, “made up of byzantine posturing and back-room dealing”? If anything, the industry-penned letter making the rounds is an example of this, whereas the public drafting process is an example of your “first kind” of process.

    As for your theory that yesterday's announcement might signal some broader consensus by the congressional leaders against Genachowski's proposal, they have already made clear publicly their support for his approach.

    The fact of the matter is that the situation is quite clear. A majority of the Commission and the relevant Congressional leaders think that reclassification is legal and a good idea. Other constituencies don't. Everybody agrees that the Communications Act could be improved. There will be competing ideas about how to update the Act, with Adam and his crew arguing for an ex post antitrust-like approach and others arguing for a light-touch ex ante regulatory approach. The process of passing something will take awhile. In the meantime, we may be operating under the “Title II plus forbearance” regime.

  • Brett Glass

    I disagree with the comment just above. I predict that we will never actually operate under the “Title II plus forbearance” regime. If the FCC follows through with it, it will be challenged (and rightfully so!) in court — in the DCC and then again in SCOTUS and will be overturned. It will thus never actually take effect. But it would cause great uncertainty, and our country would suffer as a result.

    Despite the false alarms being sounded by Google lobbyists, such as Free Press and Public Knowledge (who are impatient to get the regulation that their client and ally Google desires), there is actually no urgency here. It would be best to proceed deliberately, if slowly, rather than hastily and unwisely. In short, the best thing to do would be simply to start the process of rewriting the law. But will the Democratic Commissioners recognize this? Will pride, partisanship, and unwillingness to change course propel them onward in this third (wrong) way? Or will Julius Genachowski have an epiphany and realize that proceeding, Quixotically, toward Title II reclassification would deeply hurt the country by killing broadband investment and competition, deterring deployment, and distracting the Commission from the positive things it can and should be doing?

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