Infrastructure Bill Unlikely to Have Broadband Funds, Koh Says; Carr, Clyburn See 3-2 Neutrality Vote

FCC commissioners sparred over Chairman Ajit Pai's plan to roll back Title II net neutrality regulation under the Communications Act, also drawing scrutiny elsewhere (see 1712070069). Brendan Carr is "excited" to support a draft order that he said would benefit broadband consumers, investment and innovations. Mignon Clyburn said it would create new uncertainty, "punting" enforcement to FTC despite "serious doubts" about its jurisdiction due to the AT&T Mobility case in the 9th U.S. Circuit Court of Appeals. Both afterward told us they expect a 3-2 vote Dec. 14 to approve the draft. Matthew Berry, Pai's chief of staff and lunchtime speaker, also defended the draft and other initiatives. Pai meantime briefed Congress for a second day on net neutrality (see 1712070069).

Koh doubted broadband "direct spending" will be in an infrastructure bill, which could come next quarter. She said broadband would be an "asset class" eligible for general infrastructure funding and provisions could streamline communications siting practices. It's possible a farm bill will contain funding for rural broadband, which is a Trump administration priority, she said.

Kelsey Guyselman, an Office of Science and Technology Policy adviser, recognized the funding issue is important but said the White House is focused on creating an environment to encourage broadband investment. Guyselman said freeing up spectrum for wireless is a priority, as is broadband deployment to close the digital divide in rural areas. The administration is looking for ways on its own to streamline federal permitting processes, said Koh.

House Commerce Committee Chairman Greg Walden, R-Ore., told us he couldn't comment specifically on Koh's comments but “clearly, what we want to do is get broadband out into the unserved and underserved parts of the country as affordably as possible and as soon as possible." The emphasis must be on encouraging private sector investment in broadband deployments so “we need to clear the decks to ramp up” that activity, including via FCC planned rescission of 2015 net neutrality rules, Walden said.

Koh said a "rewrite of the Communications Act would be great," because technology has "outpaced" the law, before noting, "Maybe that's not going to happen this year." Asked if the administration would at least push for an overhaul, she said it won't: "Technology is not a top priority at the White House." She noted the U.S. is in "digital trade" talks with Canada and Mexico, with the administration focused on trying to prevent "outdated frameworks" from being imposed on e-commerce, among other issues.

The FCC draft simply would return broadband policy to a pre-2015 state, Carr said: Title II common-carrier regulation "isn't the bulwark" preventing "a Mad Max version of the internet." He said eliminating "unknowns" of the internet conduct standard and restoring FTC broadband authority under Title I (it's barred from overseeing common carriers) would create more certainty for ISPs. FTC consumer protection, including of privacy, has been around for decades and covers edge providers, he said.

Clyburn said it "boggled the mind" to hear talk about FTC oversight helping certainty when that agency could lose much broadband authority -- over the noncommon carrier activities of telecom common carriers -- if AT&T wins the 9th Circuit en banc review. Carr said a three-judge panel decision siding with AT&T's challenge to FTC authority had been set aside and the FCC is "taking the law as it is." Asked afterward if the commission had a backup plan in case the FTC lost the case, Carr said the FCC is "operating under the law of the land," and Berry declined to comment.

Clyburn objected to FCC "inconsistency" in moving to repeal net neutrality regulation despite the legal uncertainty when it declined to act on inmate calling services during litigation. She said the Dec. 14 vote on the draft would open the door to market harms: "We're going to pay the price sooner than you think." Carr quipped he's receiving "a lot of fan mail" recently, including from an ex-girlfriend in high school who said he's "about to make the second-biggest mistake" in his life.

Berry said the FCC proceeded in a "thoughtful and deliberate" way, asking questions and developing a thorough record. The draft would restore FTC broadband jurisdiction by undoing Title II, he said, and a "strong" transparency rule -- requiring ISP disclosure of broadband practices, including any affiliated or paid prioritization of traffic -- would facilitate FTC enforcement. If an ISP crosses the line, there would likely be a consumer "backlash," a "self-correcting" market solution, he said, also noting antitrust and DOJ enforcement.

Berry cited FCC focus on spurring rural broadband through a "multipronged" strategy of removing barriers to infrastructure deployment and reverse auctions of USF support for fixed and mobile services. He defended the media ownership relaxation order in November, calling a previous eight-voices test for local broadcast TV duopolies arbitrary and "intellectually dishonest." He's particularly "optimistic" repeal of a newspaper-broadcast cross-ownership ban would be upheld.

Carr and Clyburn generally agreed on FCC efforts to combat robocalling. Both also spoke with enthusiasm about 5G wireless, with Clyburn saying it must be "ubiquitous" and "accessible," and Carr saying process streamlining and other "reforms" could drive massive new investment and deployment. Carr was also "excited" about a new ATSC 3.0 broadcast TV standard, while Clyburn said the standard raised more questions than answers, including for consumers.