5/6. Federal Communications Commission (FCC) Chairman Julius Genachowski released a paper [6 pages in PDF] in which he proposes to reclassify broadband internet access service as a Title II service, and regulate broadband internet access providers as common carriers.

Introduction. This would subject these service providers to the legacy common carrier regulatory regime originally created for the single phone monopoly.

The two other Democratic Commissioners announced their support. The two Republican Commissioners announced their opposition. See, statement of Michael Copps, statement of Mignon Clyburn, and joint statement of Robert McDowell and Meredith Baker. That is, there is a partisan three vote majority in support.

The Democratic Commissioners, who have supporters in Congress, and at companies such as Google, want to regulate broadband internet access providers. However, the FCC has no statute that authorizes this.

The FCC asserted such authority during the tenure of former Chairman Kevin Martin in an adjudicatory proceeding involving the network management practices of Comcast. See, story titled "FCC Asserts Authority to Regulate Network Management Practices" in TLJ Daily E-Mail Alert No. 1,805, August 4, 2008.

More recently, during current Chairman Genachowski's tenure, the FCC commenced a broader internet regulation rulemaking proceeding. See, stories titled "FCC Adopts Internet Regulation NPRM" and "Statutory Authority and Ancillary Jurisdiction", and related stories, in TLJ Daily E-Mail Alert No. 2,008, October 23, 2009.

However, on April 6, 2010, the Court of Appeals vacated the FCC's Comcast order, and held that the FCC lacks statutory authority to regulate the network management practices of broadband internet access providers. See, story titled "Court of Appeals Vacates FCC's Comcast Order", and related stories, in TLJ Daily E-Mail Alert No. 2,072, April 7, 2010.

Moreover, since the FCC's arguments that it has authority to writes rules in this area are the same arguments rejected in the Comcast case, the yet to be adopted internet regulation rules became destined for rejection by the courts.

Going to the Congress to obtain legislative authority is not a viable option for Genachowski, because there is insufficient support in the Congress to enact the legislation that he seeks. See, story titled "Commentary: Prospects for Legislation" TLJ Daily E-Mail Alert No. 2,072, April 7, 2010.

The Democrats on the FCC now propose a significant change in longstanding FCC policy in an effort to create authority to regulate broadband internet access services.

Summary of Proposal. Specifically, Genachowski wrote that the FCC should reclassify the "transmission component of broadband access service -- and only this component -- as a telecommunications service". Then, "Apply only a handful of provisions of Title II (Sections 201, 202, 208, 222, 254, and 255)", and forbear from "application of the many sections of the Communications Act that are unnecessary and inappropriate for broadband access service". (Parentheses in original.)

47 U.S.C. § 201 treats service providers as common carriers, requires them to provide service, requires interconnection, requires that all "charges ... be just and reasonable", and authorizes the FCC to write "rules and regulations as may be necessary in the public interest".

47 U.S.C. § 202 provides, in part, that "It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage."

47 U.S.C. § 208 provides that anyone may file a complaint against a common carrier, and that the FCC has adjudicatory authority with respect to that complaint.

47 U.S.C. § 222 requires that carriers keep confidential customer proprietary network information (CPNI).

47 U.S.C. § 254 provides for FCC administered universal service tax and subsidy programs.

47 U.S.C. § 255 pertains to access by persons with disabilities.

Genachowski (at right) also wrote that "the FCC should not regulate the Internet, including web-based services and applications, e-commerce sites, and online content".

He also stated that "I will ask my Commission colleagues to join me in soon launching a public process seeking comment on this narrow and tailored approach. The proceeding will seek comment regarding the Title I and Title II options discussed above, will seek input on important questions such as whether wired and wireless broadband access should be treated differently in this context, and will invite new ideas."

Much of Genachowski's statement is more laudatory and polemic than descriptive of the proposal. He uses phrases such as "modest", "deregulatory", "third way", "narrowly tailored", "restore the status quo", and "empower consumers".

Comcast Opinion. This proposal is a reaction to the April 6, 2010, opinion [36 pages in PDF] of the U.S. Court of Appeals (DCCir) in Comcast v. FCC. This opinion vacated the August 2008 order of the FCC that asserted authority to regulate the network management practices of broadband internet access providers. The Court held that the FCC lacks statutory authority to do this.

Genachowski wrote that "The Comcast decision has created a serious problem."

He elaborated that "the opinion does cast serious doubt on the particular legal theory the Commission used for the past few years to justify its backstop role with respect to broadband Internet communications. The opinion therefore creates a serious problem that must be solved so that the Commission can implement important, commonsense broadband policies".

Title I, Title II, and Reclassification. The FCC issued a series of declaratory rulings, beginning in 2002, in which it determined that broadband internet access services offered over various platforms, including cable, wireline, wireless, and powerline, are all Title I services. The FCC then vigorously defended this interpretation in the courts.

For example, on March 14, 2002, the FCC adopted a Declaratory Ruling and Notice of Proposed Rulemaking [75 pages in PDF]. The Declaratory Ruling (DR) component of this item states that "we conclude that cable modem service, as it is currently offered, is properly classified as an interstate information service, not as a cable service, and that there is no separate offering of telecommunications service." See, story title "FCC Declares Cable Internet Access an Interstate Information Service" in TLJ Daily E-Mail Alert No. 389, March 15, 2002.

Genachowski has now proposed that the FCC revisit these proceedings, and instead declare that broadband internet access services are covered by Title II.

Title II provides an extensive regulatory framework for telecommunications carriers. Title I is a reference to Title I of the original Communications Act of 1934. It is in the nature of a preamble, not an regulatory framework. It recites the purposes for creating the FCC. It is codified at 47 U.S.C. § 151.

It provides that "For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a commission to be known as the ``Federal Communications Commission´´, which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter."

Nevertheless, the FCC has proceeded as though Title I were a regulatory category, that it applies to "information services", and that it gives rise to "ancillary jurisdiction".

Forbearance. Genachowski stated that in addition to asserting Title II authority over broadband internet access services, the FCC would forbear from exercising certain Title II powers.

However, others are less enthusiastic about the forbearance language in Genachowski's proposal. For example, Democratic Commissioner Copps wrote in his statement that "we must avoid another forbearance binge. We experienced a mad rush to forbearance in previous Commissions and it usually created many more problems than it resolved."

47 U.S.C. § 160 provides, in part, that the FCC "shall forbear from applying any regulation or any provision of this chapter to a telecommunications carrier or telecommunications service, or class of telecommunications carriers or telecommunications services, in any or some of its or their geographic markets, if the Commission determines that --- (1) enforcement of such regulation or provision is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory; (2) enforcement of such regulation or provision is not necessary for the protection of consumers; and (3) forbearance from applying such provision or regulation is consistent with the public interest."

Republican Commissioners. The two Republican Commissioners issued a joint statement in which they offered harsh words for the Genachowski's proposal.

McDowell (at left) and Baker wrote that "This proposal is disappointing and deeply concerns us. It is neither a light-touch approach nor a third way. Instead, it is a stark departure from the long-established bipartisan framework for addressing broadband regulation that has led to billions in investment and untold consumer opportunities. It also poses serious ramifications across the globe."

"This proposal risks the credibility of our institution", they wrote. Also, it "will usher in a tumultuous new age of regulatory uncertainty that will inhibit the investment of risk capital America badly needs to improve and expand our broadband infrastructure and create jobs."

Negotiating Position. None of the Commissioners offered any comments regarding whether Chairman Genachowski has advanced this proposal in part to further efforts to reach any agreement with the major broadband internet access providers regarding any future industry practices, FCC policies or rules, or Congressional legislation.

The April 6 Comcast opinion left Chairman Genachowski and his allies in a substantially weakened position with respect to regulating these broadband internet access providers.

With this proposal, Genachowski has created considerable uncertainty and risk for these service providers. Genachowski may be able to extract concessions from these service providers in return for withdrawing this proposal.

5/6. Federal Communications Commission (FCC) Chairman Julius Genachowski's May 6, 2010, paper [6 pages in PDF] provoked widespread comment.

Congress. Sen. Kay Hutchison (R-TX), the ranking Republican on the Senate Commerce Committee (SCC), stated in a release that "I am profoundly disappointed with the Chairman's decision. The desire by some to pursue net neutrality must not trump our need for a predictable regulatory framework that encourages continuing investment in communications networks. This decision is not a middle ground, this is about imposing restrictions on how private companies manage and maintain their investments."

She continued that "The Internet has grown and flourished without burdensome federal regulations because it has been able to evolve to meet rapid changes without government roadblocks holding up progress. I continue to believe that there is a way to preserve the openness of the Internet as a platform for innovation and economic growth without a prescriptive regulatory intervention by the government. Government regulation of the Internet is in nobody’s interest. I am still hopeful we can turn from this course and I will work constructively to identify an alternative approach."

Sen. John Ensign (R-NV), a senior member of the SCC, stated in a release that "I am extremely disappointed that Chairman Genachowski has chosen to go down this path as re-regulating the Internet under outdated monopoly telephone rules is a major mistake ... Using this heavy-handed approach to regulation under Title II will jeopardize private investment and innovation in broadband and inject regulatory uncertainty throughout the entire Internet.  Internet companies, broadband providers, and consumers will all suffer from such uncertainty. The government has taken over a lot of industries just this year, and the last thing that our economy needs right now is for the government to take over the Internet, too."

Sen. Byron Dorgan (D-ND), another senior member of the SCC, released a statement in which he urged FCC "reclassifying broadband as a telecommunications service", without actually referencing the May 6, 2010, statement of FCC Chairman Genachowski.

Rep. Joe Barton (R-TX), the ranking Republican on the House Commerce Committee (HCC), stated in a release that "Chairman Genachowski might as well have said he was going to remake the Internet into an old-fashioned, monopoly-era phone service. His proposal is the kind of government meddling that administrations and Congresses run by both Democrats and Republicans have said for more than a decade is wrong-headed."

He added that "In 1996, Congress added Section 230 to the Communications Act, making it the policy of the United States to leave the Internet unfettered by federal or state regulation. That policy has been stunningly successful, as 95 percent of the country has access to broadband and 200 million Americans have subscribed. It should be up to Congress to decide whether it’s now a good idea to stray from that successful bipartisan policy."

Rep. Cliff Stearns (R-FL), the ranking Republican on the HCC's Subcommittee on Communications, Technology and the Internet, stated in a release that "This proposal to reclassify broadband service as a phone service under Title II of the Communications Act is a partisan maneuver. Congress should make such a significant change. There is no economic or legal justification for this move and the result will be a freeze in the tremendous investment and innovation we have seen over the past two decades. The Internet is the most powerful platform for innovation ever created and by his actions, Chairman Genachowski is endangering this platform."

He continued that "Broadband is not a telecommunications service; it is an information service outside the reach of the Title II common carrier rules. The U.S. Supreme Court affirmed that view in its 2005 Brand&nsp;X decision. As I have long said, there is no problem here, and the predicate to any regulation should be a finding of market failure. That is why I have been working on a bill -- the Internet Investment, Innovation, and Competition Preservation Act -- which would require the FCC to demonstrate such a failure before imposing Internet regulation. Moreover, it would require any such regulation to be imposed on a technologically and competitively neutral basis."

Broadband Internet Access Providers. The service providers who are the target of Genachowski's proposed reclassification roundly criticized it.

Kyle McSlarrow (at right), head of the National Cable and Telecommunications Association (NCTA), stated in a release that the proposal "is disappointing".

He said that "any Title II approach is still fraught with legal uncertainty and practical consequences which pose real risks to our ability to provide the high-quality and innovative broadband services that our customers expect, thus undermining the very investment and innovation goals we share with Chairman Genachowski and upon which the National Broadband Plan depends.

He added that "Nothing has occurred either in the marketplace or in broadband technology to change the fact that our broadband services are `information services,´ and not `telecommunications services´ that are regulated under a model designed for a previous era and for very different services."

AT&T's Jim Cicconi stated in a release that "We are deeply disappointed that, in order to deal with an adverse court decision, the FCC chairman has decided to subject all broadband facilities, including Internet backbones, to common carriage regulation under Title II. We believe this is without legal basis. Make no mistake -- when it regulates the networks that comprise the Internet, the FCC is in fact, and for the first time, regulating the Internet itself. There is no statutory basis for doing so -- indeed it is directly contrary to Congress’s stated intentions -- and is being done without any compelling evidence that would justify a reversal of the FCC’s prior decisions on this issue.  If the FCC follows through with the chairman’s stated intent, it will have a direct impact on jobs and investment in one of the areas of the US economy that many hoped could help lead the recovery."

He continued that "this approach would subject Internet facilities to some of the most onerous regulatory provisions on the books -- provisions drafted in 1934 for a monopoly voice network."

Verizon's Tom Tauke stated in a release that "Today's FCC announcement raises obvious concerns about whether the chairman is suggesting a path that could ultimately harm consumers and inhibit the innovation and investment he wants to encourage."

He added that "In enacting the 1996 Telecommunications Act, Congress intentionally excluded Internet services, like broadband Internet access, from the scope of Title II’s regulatory burdens. Those regulations were designed for different services delivered by different networks in different times."

Walter McCormack, head of the US Telecom, stated in a release that "This is a deeply disturbing development. In proposing to apply 19th Century-style monopoly regulation to the competitive 21st Century Internet, the FCC has put a cloud of uncertainty over the most dynamic sector of the economy -- an area of robust job creation, thriving innovation, and extraordinary levels of consumer satisfaction."

He concluded that "We believe it would be a mistake of historic proportions to abandon the longstanding bipartisan policy to keep the rapidly-evolving Internet free of growth-inhibiting government regulation."

Corporate Supporters of Title II Regulation. Thirteen companies, including Google, eBay, Skype, Amazon, Sony, Dish Network, and Echostar, sent a letter to the FCC Chairman Genachowski stating that "we applaud the middle ground approach that you have proposed".

"Unfortunately, the recent decision in Comcast v. FCC has raised serious doubts about the FCC’s ability to implement the National Broadband Plan and other important initiatives using so-called ``ancillary´´ authority under Title I of the Communications Act."

They argued that this proposal would "preserve the fundamental openness of the Internet", "level the playing field", and ensure a "healthy ecosystem for all".

Groups. Rob Atkinson, head of the Information Technology and Innovation Foundation (ITIF), wrote in a short paper titled "FCC Goes Too Far (Once Again)" that "This is a story that has become all too familiar. In the recent past, the courts have struck down punitive FCC orders against the Super Bowl ``wardrobe malfunction´´ and on, April 6, an overwrought ruling against cable operator Comcast, who sought to preserve good Internet performance for those of its customers who use Voice over Internet Protocol (VoIP) services such as Skype and Vonage. This most recent example of FCC over-reach is a proposal that would take broadband Internet services out of their present status as lightly-regulated "information services" (Title I) and plunk them into a regulatory system devised for the monopoly telephone networks of the 1930s (Title II)." (Parentheses in original.)

He added that "The FCC's action in the Comcast case was gratuitous since Comcast had already decided to replace the system the FCC didn't like with a new one long before the FCC issued its punishment. One after one, the alleged examples of Internet abuse by ISPs have proved to have been built on hot air or corrected without Commission action."

Tom Lenard, head of the Technology Policy Institute (TPI), stated in a release that "The FCC's proposal is a large step toward turning the Internet infrastructure into a public utility."

"The proposal also is at odds with the Commission’s claims that its policies are data driven. The Commission has never presented data supporting the need for this proposed regulatory approach.", said Lenard. He added that this proposal "will create a great deal of uncertainty in the market. This will discourage investment and undermine the goals of the agency's own National Broadband Plan."

Barbara Esbin of the Progress & Freedom Foundation (PFF), stated in a release that "The new proposals are far less intrusive, for example, than the FCC's previously proposed ``Open Internet´´ rules, which would have prohibited even ``just and reasonable discrimination´´ in the handling of Internet traffic. Another encouraging detail is the FCC's indication that restrictive regulation of Internet service providers' network management practices is to be avoided."

She also wrote that "It is by no means certain that the FCC can compel common carrier status in today's competitive broadband Internet marketplace; past attempts have succeeded only in the presence of significant market power. Relatedly, the rationale used for ``treating´´ the telecommunications component of the functionally integrated Internet service offerings in today's market -- market failure or a lack of adequate competition -- will also doom the agency's chances of successfully forbearing from over 40 provisions in Title II of the Act, which by definition will automatically attach by virtue of the FCC's reclassification exercise."

She added that "this action is by no means a simple return to the status quo ante the Comcast decision for all segments of the broadband Internet access industry -- it is a radical departure for the cable industry, the largest providers of residential broadband Internet access."

In contrast, Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "The previous administration tried to lump enhanced data information services and communications services together. It’s becoming clear to more people that that was the wrong approach and the FCC’s new direction would correct that. Genachowski’s hybrid approach recognizes the distinction between applications, online data services and media content on the one hand, and essential underlying telecommunications transport services on the other. "

Black added that "By acknowledging that Title II of the (Communications) Act governs interstate telecommunications, including broadband transmission services sold as Internet access, this move wisely correct a previous misstep and would keep the FCC on solid legal ground to maintain nondiscriminatory access to an open Internet."

Leslie Harris, head of the Center for Democracy and Technology (CDT), stated in a release that "This is a crucial step in developing a telecommunications legal framework for the 21st century."

The CDT's David Sohn stated that "If this is done right, it will not amount to FCC regulation of the entire Internet ... Nor will it impose the old telephone regulatory framework, with its price regulation and tariff filings, on modern Internet access services ... It will simply mean that the principles of openness and nondiscrimination that have characterized the Internet since its beginning will be maintained and protected by federal policy."

Tyrone Brown, head of the Media Access Project (MAP), stated in a release that "This is a defining moment for Chairman Genachowski. He was the object of a massive lobbying campaign mounted by some of the most powerful corporations in the country, and he held his ground. The telephone and cable companies fought this outcome".

Gigi Sohn, head of the Public Knowledge, praised the proposal, but stated in a release that "we were not pleased to read that the Commission at the outset is foreclosing the possibility of requiring line sharing."

5/6. This article pertains to the question of whether the Federal Communications Commission (FCC) has authority to classify broadband internet access services as Title II services under the Communications Act of 1934, and regulate these service providers under Title II.

Arguments of Interested Parties. Critics of the proposal questioned whether the courts would strike it down. Supporters of the proposal argued that that it is legally sound.

Republican FCC Commissioners Robert McDowell and Meredith Baker wrote in a joint statement that "without a specific mandate from Congress, the appellate courts are likely to hand the Commission another stinging rebuke".

Rep. Cliff Stearns (R-FL), the ranking Republican on the HCC's Subcommittee on Communications, Technology and the Internet, stated in a release that "Broadband is not a telecommunications service; it is an information service outside the reach of the Title II common carrier rules. The U.S. Supreme Court affirmed that view in its 2005 Brand X decision."

Rob Atkinson, head of the Information Technology and Innovation Foundation (ITIF), wrote in a short paper titled "FCC Goes Too Far (Once Again)" that "Reclassification is certain to bring about a protracted legal battle that the FCC is unlikely to win." He added that "Only Congress can create a new chapter in the library of communications law. The best the FCC can do to facilitate the exercise is propose a framework."

The Progress & Freedom Foundation's (PFF) Barbara Esbin asked rhetorically in a statement, "will the courts view this as reasoned decision-making, taken within the FCC's Congressionally-delegated powers, or a transparent end-run around the effects of an unfavorable judicial ruling?"

The Technology Policy Institute's (TPI) Tom Lenard wrote in a statement, "Whether this proposal will ultimately be successful in the courts is unclear".

Walter McCormack, head of the US Telecom, stated in a release that this "proposal goes far beyond the authority granted to the FCC by Congress".

Verizon's Tom Tauke stated in a release that "We believe that the chairman’s stated approach is legally unsupported. The regulatory and judicial proceedings that will ensue can only bring confusion and delay to the important work of continuing to build the nation’s broadband future."

In contrast, thirteen companies who back Genachowski's proposal, including Google, eBay, Skype, Amazon, Sony, Dish Network, and Echostar, sent a letter to the FCC Chairman Genachowski stating that it is "legally sound".

Similarly, the Media Access Project's (MAP) Tyrone Brown wrote in a release that the proposal "is well within the Commission's discretion".

Austin Schlick. Austin Schlick, General Counsel of the FCC, wrote a paper [10 pages in PDF] that offers the most detailed defense of the legality of the proposed action.

He relies heavily on the Supreme Court's 1984 opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, and the Supreme Court's application of Chevron in its 2005 opinion [59 pages in PDF] in NCTA v. Brand X, 545 U.S. 967. See also, story titled “Supreme Court Rules in Brand X Case” in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

The Supreme Court wrote in Chevron that "When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. ... We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer ..." (Footnotes omitted.)

Schlick argues that "These opinions collectively afford the Commission great flexibility to adjust its approach going forward", and that "the lawfulness of a limited reclassification could be confirmed relatively quickly in a single court case".

Analysis of Chevron and Brand X. Some critics of Genachowski's proposal have argued that the Supreme Court held in Brand X that broadband internet access service is an information service.

Actually, in Brand X, the Court, applying Chevron deference, merely upheld the FCC's determination that cable broadband internet access service is an information service, to the extent that it deferred to the FCC's judgment. Hypothetically, had the FCC determined that broadband internet access service is a Title II service, the Court, applying Chevron deference, may well have upheld that hypothetical determination.

But, if Genachowski's proposal were to be implemented, the FCC would be in a different position. Reclassification (or re-interpretation of a statute by an agency) is not the same thing as an original classification or interpretation.

The FCC issued a series of declaratory rulings in which it determined that broadband internet access services offered over various platforms, including cable, wireline, wireless, and powerline, are all Title I services. The FCC then vigorously defended this interpretation in the courts.

In Brand X, the Supreme Court considered an original Title I classification. If the FCC follows through with Genachowski's proposal, the courts would consider a change in classification. The courts' approach to this might be different.

First, the question of whether a determination that broadband cable access is a Title I service, under Chevron, is a "permissible construction of the statute", is not the same question as whether a determination that broadband cable access is a Title II service is a "permissible construction of the statute". Second, there is the matter of whether the standard of review for a reclassification is the same as an original classification. Third, there is the matter of how FCC's reacting to the Comcast opinion might affect the courts' application of Chevron deference.

The Supreme Court, rejecting several Court of Appeals opinions, held in its 2009 opinion [PDF] in FCC v. Fox Television Stations, 556 U.S. __, that the FCC can change its policies. However, the question in Fox was whether the FCC's action was arbitrary and capricious under the Administrative Procedure Act (APA), and not whether the FCC's interpretation of a statute was entitled to Chevron deference.

There pertinent dicta in Brand X about reclassification. The Court wrote that the FCC "is free within the limits of reasoned interpretation to change course if it adequately justifies the change". The Court obviously considered that reclassifications are permissible. However, its use of the phrases "reasoned interpretation" and "adequately justifies" suggest that the Court might apply a higher standard to reclassifications that to original classifications.

Also, if the FCC were to implement Genachowski's proposal, since the FCC for years adhered to its Title I determinations, and only changed it classifications in the wake of the Comcast opinion, the courts may view the reclassification either as (1) a failure to adequately justify, or (2) not as a expert determination entitled to deference, but a crass attempt evade the Comcast opinion.

The House will meet at 10:00 AM for legislative business. It will consider HR 1722 [LOC | WW], the "Telework Improvement Act", a bill pertaining to teleworking by federal employees. See, Rep. Hoyer's schedule for the week of May 3, and schedule for May 6.

The Senate will meet at 9:30 AM. It will resume consideration of S 3217 [LOC | WW], a huge bill pertaining to regulation of financial institutions.

9:00 AM. Day two of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee (ISTAC). The May 6 session is closed to the public. See, notice in the Federal Register, April 21, 2010, Vol. 75, No. 76, at Page 20817. Location: DOC, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "America Wins When America COMPETES: Building a High-Tech Workforce". See, notice. Location: Room 253, Russell Building.

11:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "State Taxation: The Role of Congress in Developing Apportionment Standards". See, notice. The HJC will webcast this event. Location: Room 2141, Rayburn Building.

TIME AND LOCATION CHANGE. 10:00 AM. 3:05 PM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of the several judicial nominations: Gordon Liu (to be a Judge of the U.S. Court of Appeals for the 9th Circuit), Ray Lohier (USCA/2ndCir), Kimberly Mueller (USDC/EDCal), Richard Gergel (USDC/DSCar), Michelle Childs (USDC/DSCar), Catherine Eagles (USDC/MDNC), and Leonard Stark (USDC/DDel). The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building. Room S-216, Capitol Building.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation by Stephan Meier (Columbia University business school). For more information, contact Loren Smith at lsmith2 at ftc dot gov or Tammy John at tjohn at ftc dot gov. Location: FTC, Room 4100, 601 New Jersey Ave., NW.

2:30 - 5:30 PM. The President's National Security Telecommunications Advisory Committee will hold its annual meeting. See, notice in the Federal Register, March 31, 2010, Vol. 75, No. 61, at Pages 16159-16160. Location: U.S. Chamber of Commerce, 1615 H St., NW.

Deadline to submit comments to the National Archives and Records Administration's (NARA) Information Security Oversight Office (ISOO) regarding its proposed amendments to National Industrial Security Program Directive No. 1. The NARA stated that these changes provide "guidance to agencies on release of certain classified information (referred to as ``proscribed information´´) to contractors that are owned or under the control of a foreign interest and have had the foreign ownership or control mitigated by an arrangement known as an Special Security Agreement (SSA)". See, notice in the Federal Register, April 6, 2010, Vol. 75, No. 65, at Pages 17305-17307.

Rep. Hoyer's schedule for the week of May 3 states that "no votes are expected in the House".

8:30 AM - 5:00 PM. The National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering will meet. See, notice in the Federal Register, April 14, 2010, Vol. 75, No. 71, at Page 19428. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

9:00 AM - 3:00 PM. The National Telecommunications and Information Administration (NTIA) and International Trade Administration (ITA) will hold a meeting titled "Information Privacy and Innovation in the Internet Economy". See, notice in the Federal Register, April 16, 2010, Vol. 75, No. 73, at Page 19942. Location: Polaris Room, Ronald Reagan International Trade Center, 1300 Pennsylvania Ave., NW.

9:00 - 10:45 AM. The Progress & Freedom Foundation (PFF) will host an event titled "What Should the Next Communications Act Look Like?". The speakers will be Tom Tauke (Verizon Communications), Peter Pitsch (Intel), Walter McCormick (US Telecom), Ray Gifford (Wilkinson Barker & Knauer), Michael Calabrese (New America Foundation), Barbara Esbin (PFF), and Adam Thierer (PFF). See, notice. Location: National Press Club., Holeman Lounge, 13th Floor, 529 14th St., NW.

2:00 - 4:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Policy Committee's Privacy & Security Policy Workgroup will hold a webcast meeting. See, notice in the Federal Register, April 26, 2010, Vol. 75, No. 79, at Page 21630. The ONCHIT publishes inconsistent information about its meetings in the Federal Register and its web site.

Mothers Day.

10:00 AM - 1:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Policy Committee's NHIN Workgroup will hold a webcast meeting. See, notice in the Federal Register, April 26, 2010, Vol. 75, No. 79, at Page 21630. The ONCHIT publishes inconsistent information about its meetings in the Federal Register and its web site.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a panel discussion titled "Cyber on the Hill: Congressional Cybersecurity Oversight, Legislation & Initiatives for 2010". The ABA will webcast this event. See, notice. The price to attend, or receive webcast, is $10. Location: Crowell & Moring, 1001 Pennsylvania Ave., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch for planning purposes. Send nominations by May 3 to Cathy Hilke chilke at wileyrein dot com and Micah Caldwell at mcaldwell at fh-law dot com. Location: Fleischman & Harding, 6th floor, 1255 23rd St., NW.

12:30 - 2:00 PM. The New America Foundation (NAF) and others will host a panel discussion titled "Open Data: Philanthropy's Future Fuel For Change". See, notice. Location: NAF, Suite 400, 1899 L St., NW.

Third of four suggested dates for submitting "white papers" to the National Institute of Standards and Technology (NIST) regarding the NIST's Technology Innovation Program (TIP). The fourth suggested submission date is July 12, 2010. The final deadline is September 30, 2010. See, notice in the Federal Register, September 4, 2009, Vol. 74, No. 171, at Pages 45823-45825.

Deadline to submit comments to the Department of Justice's (DOJ) Antitrust Division regarding the proposed Final Judgment in U.S. v. Daily Gazette Company and Medianews Group, Inc. See, notice in the Federal Register, March 11, 2010, Vol. 75, No. 47, at Pages 11681-11727.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding numerous proposed changes to the FCC's procedural rules and organizational rules. The FCC adopted this item on February 18, 2010, and released the text [23 pages in PDF] on February 22, 2010. It is FCC No. 10-32 in GC Docket No. 10-44. See, notice in the Federal Register: March 25, 2010, Vol. 75, No. 57, at Pages 14401-14409.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding making minor changes to its rules pertaining to ex parte communications with the FCC. The FCC adopted this item on February 18, 2010, and released the text [27 pages in PDF] on February 22, 2010. It is FCC No. 10-31 in GC Docket No. 10-43. See, notice in the Federal Register, March 25, 2010, Vol. 75, No. 57, at Pages 14409-14417.

8:00 - 10:00 AM. Broadband Census News LLC will host a panel discussion titled "The Google Book Search Case and E-Book Licensing". The speakers will be Sarah Stirland, Michael Capobianco, Jonathan Band, Sherwin Siy (Public Knowledge) and others. Breakfast will be served. The price to attend is $45. This event is open to the public. Location: Clyde's of Gallery Place, 707 7th St., NW.

8:30 AM - 3:15 PM. The National Institute of Standards and Technology's (NIST) Technology Innovation Program Advisory Board will meet. See, notice in the Federal Register, April 29, 2010, Vol. 75, No. 82, at Page 22553. Location: NIST, Advanced Measurement Laboratory, Building 215, Room C103, Gaithersburg, MD.

9:00 - 11:00 AM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Policy Committee's Strategic Plan Workgroup will hold a webcast meeting. See, notice in the Federal Register, April 26, 2010, Vol. 75, No. 79, at Page 21630. The ONCHIT publishes inconsistent information about its meetings in the Federal Register and its web site.

12:15 - 1:30 PM. The Federal Communications Commission (FCC) will host an event titled "Meet the Audio Services Division Experts". The speakers will be Tom Hutton, Mike Wagner and Kelly Donohue of the FCC's Media Bureau's (MB) Audio Services Division. The FCBA asserts that this is an FCBA event. Location: National Association of Broadcasters, 1771 N St., NW.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar presented by Tracy Lewis (Duke University) titled "__". For more information, contact Patrick Greenlee at 202-307-3745 or atr dot eag at usdoj dot gov. Location: DOJ, Liberty Square Building, 450 5th St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding assessment and collection of regulatory fees for Fiscal Year 2010. The FCC adopted this NPRM on April 12, 2010, and released the text [53 pages in PDF] on April 13, 2010. It is FCC 10-51 in MD Docket No. 10-87. See, notice in the Federal Register, April 26, 2010, Vol. 75, No. 79, at Pages 21536-21567.

? 9:00 AM - 12:00 NOON. The Architectural and Transportation Barriers Compliance Board will hold a hearing on proposed changes to its Americans with Disabilities Act Accessibility Guidelines regarding self service machines, point of sales machines, and ticketing kiosks. See, notice in the Federal Register, April 13, 2010, Vol. 75, No. 70, Pages 18781-18782. Location: Embassy Suites, DC Convention Center, 900 10th St., NW.

? 9:00 AM - 12:00 NOON. The Architectural and Transportation Barriers Compliance Board will hold an event titled "Public Hearing on Information and Communication Technology Standards and Guidelines". See, notice in the Federal Register, April 27, 2010, Vol. 75, No. 80, at Pages 22100-22101. Location: Embassy Suites, DC Convention Center, 900 10th St., NW.

? 10:00 - 11:00 AM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Standards Committee's Clinical Operations Workgroup/Vocabulary Task Force will hold a webcast meeting. See, notice in the Federal Register, April 26, 2010, Vol. 75, No. 79, at Page 21629. The ONCHIT publishes inconsistent information about its meetings in the Federal Register and its web site.

10:00 AM. The House Financial Services Committee (HFSC) will hold a hearing titled "Use of Credit Information Beyond Lending: Issues and Reform Proposals". See, notice. Location: Room 2128, Rayburn Building.

10:00 AM. The Senate Judiciary Committee's (SJC) Subcommittee on Terrorism and Homeland Security will hold a hearing titled "The Espionage Statutes: A Look Back and A Look Forward". The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a panel discussion titled "Analysis of Innovation in Merger Investigations". The speakers will be Kari Wallace (Federal Trade Commission), Scott Stempel (Morgan Lewis & Bockius), Robert Maness (Charles River Associates), and Karen Bokat (Wiley Rein). The ABA will webcast this event. See, notice. The event is free to attend, or receive webcast. Location: Wilson Sonsini, 1700 K St., NW.

Day one of a two day conference hosted by the Computer and Communications Industry Association (CCIA) titled "2020 Washington Caucus: Internet Policy, Innovation and Job Creation". See, notice. For more information, contact Danielle Yates at 202-783-0070 or dyates at ccianet dot org. Location?

9:30 AM - 4:30 PM. The DC Bar Association will host an event titled "Essential Checklist for Electronic Discovery 2010". The speakers will be John Facciola (Magistrate, USCD/DC) and Conrad Jacoby (efficientEDD). The price to attend ranges from $189 to $229. Most DC Bar events are not open to the public. This event qualifies for continuing legal education (CLE) credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology and the Internet will hold a hearing titled "The National Broadband Plan:  Promoting Broadband Adoption". See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, April 29, 2010, Vol. 75, No. 82, at Pages 22553-22554. Location: Room 3884, 14th St. between Constitution & Pennsylvania Aves., NW.

1:00 PM. The House Commerce Committee's (HCC) Subcommittee on Consumer Protection will hold a hearing on HR  4501, the "Guarantee of a Legitimate Deal Act", a bill to provide for FTC regulation of online sales of precious metals. See, notice. Location: Room 2322, Rayburn Building.

2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Nominations". The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

4:00 - 5:00 PM. The Department of Homeland Security's (DHS) Homeland Security Advisory Council will meet by teleconference. It will review the Countering Violent Extremism Working Group's findings and recommendations. May 7 is the deadline to submit written comments. See, notice in the Federal Register, April 19, 2010, Vol. 75, No. 74, at Pages 20371.

Day two of a two day conference hosted by the Computer and Communications Industry Association (CCIA) titled "2020 Washington Caucus: Internet Policy, Innovation and Job Creation". See, notice. For more information, contact Danielle Yates at 202-783-0070 or dyates at ccianet dot org. Location?

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding revisions to its satellite and earth station licensing rules. The FCC adopted this NPRM on January 21, 2010, and released the text [25 pages in PDF] on January 26, 2010. It is FCC 10-21 in IB Docket No. 06-154. See, notice in the Federal Register, March 29, 2010, Vol. 75, No. 59, at Pages 15392-15400.

5/6. Federal Communications Commission (FCC) Chairman Julius Genachowski, with the backing of fellow Democratic Commissioners Michael Copps and Mignon Clyburn, proposed that the FCC regulate broadband internet access services under Title II of the Communications Act, which applies to phone companies. To the extent that the Congress has not made major revisions to the Communications Act since 1996, and has not directed the FCC to regulate broadband internet access under the legacy regime for phone companies, the FCC is in essence making a legislative determination. But, the FCC often does this, with backing from members of Congress.

Many persons promptly criticized Genachowski's plans to assert authority to regulate broadband internet access providers under Title II. Many of these critics argued that if this were to be done, it must be done by Congressional legislation. Rep. Cliff Stearns (R-FL) called this forthcoming action an "end run around Congress". See, release.

Similarly, the two Republican FCC Commissioners, Robert McDowell and Meredith Baker, wrote in a joint statement that "Government agencies simply cannot create new legal powers beyond those granted by Congress".

Yet, one of the primary functions of the FCC is to operate as an end run around the legislative process, and to give itself powers that might otherwise have been granted by the Congress. As Justice Stevens argued in his recent concurring opinion in FCC v. Fox Television Stations, 556 U.S. __ (2009), the FCC is an "agent of the Congress". See, opinion [PDF] and story titled "Supreme Court Reverses in FCC v. Fox" in TLJ Daily E-Mail Alert No. 1,932, April 28, 2009

The founding fathers, who debated, wrote and ratified the Constitution, deliberately created a legislative process in which the enactment of bills is very difficult. In contrast, it is much easier for an agency to act, particularly under Administrative Procedure Act (APA) rules, and the standard of judicial deference announced by the Supreme Court in its opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

The Congress establishes, directs, and oversees regulatory agencies such as the FCC in part for the purpose of legislating indirectly via agency adjudications, promulgation of rules, and declaratory rulings.

If agencies operate as rogue or independent actors, they tend to be deprived of authority, defunded, or otherwise corrected by the Congress. Chairman Genachowski is not operating independently. For example, the Democratic Chairman of the House and Senate Commerce Committees sent him a letter [PDF] on May 5, 2010, urging him to take the action that he just did, and providing him some cover from his critics.

They wrote that "in the near term, we want the agency to use all of its existing authority to protect consumers and pursue the broad objectives of the National Broadband Plan. To accomplish these objectives, the Commission should consider all viable options. This includes a change in classification, provided that doing so entails a light regulatory touch, with appropriate use of forbearance authority."

Members of Congress, and the President, often have goals that are in the nature of passage of legislation, but which they pursue via agency processes. When agency Chairmen and Commissioners take actions, such as that just announced by Chairman Genachowski, they are acting in a legislative capacity, but not usurping legislation authority. They are acting in an agency capacity on behalf of some, but usually not all, persons who have a Constitutional role in the legislative process, such as Rep. Waxman, Sen. Rockefeller, and President Obama.

Rep. Stearns and some others now assert that the FCC is usurping Congressional authority. In other matters, critics of the Genachowski's plan have utilized and benefited from the agent principal relationship between the FCC and Congress. Also, in the past, Democrats disgruntled by actions of a Republican dominated FCC have articulated arguments similar to Rep. Stearns'.

For example, the Republican controlled House passed a major communications bill in 2005, with the support of most Republicans, including Rep. Stearns, and many Democrats. But, the Senate did not pass it, and it failed to become law. The Republican controlled FCC then conducted several proceedings in which it adopted rules that resembled some of the provisions of the failed bill, sometimes over the objections of Democrats in Congress and at the FCC.

Recall for example, the video franchising provisions of the 2005 bill, and the FCC's 2006 promulgation of video franchising rules. Democratic Commissioner Jonathan Adelstein wrote in dissent that "the FCC is a regulatory agency, not a legislative body" and that "this is legislation disguised as regulation". Democratic Commissioner Michael Copps also dissented. See, story titled "FCC Adopts Order Affecting Local Franchising Authorities", and related stories, in TLJ Daily E-Mail Alert No. 1,510, December 27, 2006. The three Republican Commissioners, who comprised a majority, supported that order.

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