ACA to FCC: Reclassifying Broadband Without NPRM Violates Law

The American Cable Association, which lobbies for small cable operators, told the Federal Communications Commission that aside from the policy problems in reclassifying broadband transmissions as a Title II common carrier service, it would be violating the law to do so, at least as presently proposed.

Because the FCC is changing the classification of a service under an existing rule, and not changing the rule, FCC Chairman Julius Genachowski and General Counsel Austin Schlick have argued that it can be done in a declaratory ruling rather than through the rulemaking process. But ACA has argued, as its representatives did most recently in a meeting with Schlick and other FCC attorneys according to a copy of the ex parte disclosure, that Title II would impose new regulatory burdens and paperwork requirements on its small and medium-sized cable/telco operator constituency.

"[T]he Commission cannot lawfully proceed directly from the NOI to a declaratory ruling that alters the status quo by imposing new regulatory and legal obligations on providers. Rather, the Commission must first issue a notice of proposed rulemaking and publish that notice in the Federal Register, two steps that the Commission has failed to take in this case." Otherwise, says ACA, the FCC would be violating the Administrative Procedures Act and the Regulatory Flexibility Act.