National Cable & Telecommunications Association (NCTA) President Michael Powell suggested during a televised interview on C-SPAN’s The Communicators series that the key to resolving questions over the FCC’s authority to impose Title II regulation on Internet service providers (ISPs) lies in the hands of Congress.  According to Powell: “if Congressional authority is unclear, then congressional action is the solution.” 

A Republican and former chairman of the FCC, Powell appeared on the C-SPAN program last Saturday as debate continued to swirl over a draft FCC order that proposes to classify broadband ISPs as telecommunications service providers that would be subject to common carrier regulation under Title II of the 1934 Communications Act.   The FCC is scheduled to vote on the order next Thursday (February 26).  Describing the draft FCC order as a game-changer for a cable industry that has invested billions of dollars in broadband on the premise that the FCC would maintain its current light-touch regulatory approach, Powell termed the adoption of the Title II plan as a “fatal step” that is bound to result in protracted litigation.  As he admitted that NCTA is likely to be included among the litigants, Powell countered that ISPs have committed no demonstrable harms that justify a Title II regime.

Because so much of the net neutrality debate is premised on FCC authority, Powell said it is up to Congress to help the FCC decide where that authority rests.  Observing, “it’s really tragic to see people dismissive of the legislative process as though it is evil,” Powell said, “this whole thing can be fixed with a sentence if Congress wants to.”  Otherwise, without such a pronouncement, Powell warned that enactment of the draft Title II order will ignite “a litigation circus” that “will go on for many years.”