NARUC to Consider Encouraging FCC Title II, Section 706 Authorities on Net Neutrality

NARUC is set to wade into the net neutrality debate at its meeting this week in Dallas, where its board will consider a resolution that would encourage the FCC to use the Telecom Act Title II and Section 706 as jurisdictional bases as it creates new net neutrality rules. The resolution would also lend NARUC support to the FCC’s proposed expansion of the transparency rule, said a draft of the resolution released in advance of the meeting (http://bit.ly/1sI9XiF).

It’s unusual for NARUC to consider only one telecom-related resolution at a meeting, industry participants told us, but they said they anticipate the question of endorsing Title II authority could generate what one telecom lobbyist called a potentially “heated” debate. The NARUC board is to consider the resolution Wednesday, pending a vote Tuesday of the group’s Committee on Telecommunications. Title II also is animating an FCC docket on the IP and HD voice transition, with NARUC wanting VoIP deemed a Title II service (CD July 11 p7).

The resolution is in response to the FCC May 15 net neutrality rulemaking, which sought comment on application of Title II and Section 706 authorities (CD May 16 p1), said Vermont Public Service Board member John Burke, a NARUC board member who sponsored the resolution. “NARUC should speak as a group on this,” given it issued pro-net neutrality resolutions in 2002 and 2010, he said. “What concerns me is that right now there are no enforceable rules that say the net neutrality principles have to be followed,” Burke said. “I'm not saying that anyone is doing anything that is really toying with the principles, but this is the kind of situation where you don’t want to wait until the cat is loose and then try to catch it."

The FCC exploration of using Title II authority on net neutrality has been controversial all year, so it’s likely potential NARUC support for Title II will also be vigorous, said Harold Feld, Public Knowledge senior vice president. NARUC’s previous support for net neutrality “makes it easier to some degree, but the fact is that these sorts of things are always hotly debated,” he said. “You'll have lots of folks weighing in, with the voting members being heavily lobbied, so we will see how it comes out.”

NARUC Telecom Committee Chairman Chris Nelson told us he’s withholding his opinion on the resolution until the committee votes, but said, “I'm looking forward to a very robust discussion among our members as to whether or not they want to go as far as this resolution does.” The committee’s vote Tuesday will occur after a morning panel on net neutrality, which Burke is moderating, that will include Feld and executives from AT&T and NCTA. Nelson said he has not surveyed the opinions of the rest of the committee.

Burke said he anticipates opposition from industry to the mention of Title II in the resolution. “The resolution stops short of saying that’s the path you have to take, but nonetheless I suspect that just opening that door is enough to get the attention of many in industry,” he said. “I think there are a lot of people with their minds not yet made up. I have yet to have anybody say ‘you're crazy to think about Title II,’ so I think everybody’s at least got it in their heads as something you'd want to look at.” Nebraska Public Service Commissioner Anne Boyle and West Virginia Public Service Commissioner Ryan Palmer have committed to co-sponsoring resolution, while several others have also indicated they might become co-sponsors, Burke said.

FCC Commissioner Mignon Clyburn will speak Monday at NARUC as part of a panel on how public utilities should prepare for disasters, including cyberattacks. Other NARUC telecom panels will examine the state impact of the 10th U.S. Circuit Court of Appeals decision upholding the FCC 2011 USF/intercarrier compensation order (CD May 27 p1), the 1996 Telecom Act, the IP transition trials, the rate floor, fixed wireless technology and the future of carrier of last resort obligations. The discussion on the Telecom Act will be interesting because of ongoing questions about whether the federal-state jurisdictional boundaries delineated in 1996 require an update, Nelson said. NARUC Washington Action Program Chairman Greg White has said the group is prepared to advocate strongly for the need for a state role in any Communications Act update (CD Jan 14 p9).

The two IP transition panels will also be interesting because those trials have been an ongoing focus for NARUC, Feld said. Several previous NARUC meetings had included discussions of AT&T’s proposed pilot program, but now that AT&T and the FCC have said the program’s start will take longer than anticipated, “the real question is how people will look at this issue,” Feld said. “Now that the specific focus of the debate has moved to the backburner,” the question is “whether people will look at this from a broader perspective, or will they switch” to focusing on The Utility Reform Network’s complaint to the California Public Utilities Commission against Verizon over its handling of the IP transition (CD March 27 p10), he said.