FCC's McDowell against reclassification, citing courts

Federal Communications Commission member Robert McDowell said Friday that he wouldn't support putting broadband services under the same regulatory regime as phone services, saying such a move would face significant legal challenge.

Commissioner McDowell said that a classification of broadband Internet providers as Title II service carriers would get overturned in court. "That would start smelling to a court like arbitrary and capricious," he said. Instead, he said he supports a move by Congress to clarify the agency's authority over broadband under Title I, a category over which the agency now has only "ancillary" oversight. Commissioner McDowell added that FCC Chairman Julius Genachowski's push for new network neutrality rules appeared in trouble after the court decision. He said that it is "a myth" that broadband net access services were once regulated as a Title II Telecommunications service, pointing to a 1998 report to Congress from then-FCC Chairman Bill Kennard that he said made it explicit that Internet services were not regulated telecom services, and had said that it could even be harmful to treat them as such.