Rep, John Dingell (D-Mich.), member and former chairman of the House Energy & Commerce Committee, wants an answer from FCC Chairman Julius Genachowski by close of business Monday, July 26, to Dingell's May 27 letter (or "Dingellgram" as they have been come to be known) seeking more information on Genachowski's so-called "third way" approach to clarifying the FCC's regulatory authority over Internet access service via applying some Title II common carrier regs.
Dingell said in a July 20 follow-up letter to Genachowski that he wanted to express his "great frustration" that the chairman hadn't responded and was "apparently unwilling to respond" to that letter. Dingell said answers to the questions posed in his initial letter would be "invaluable in informing the debate." He also not-so-subtly reminded the chairman that Congress is the FCC's boss, saying he had often reminded the chairman that the House and Senate "are the sole progenitors of the commission's authorities."
Dingell, the longest serving representative, suggested in that May 27 letter that he had the institutional memory to weigh in on what Congress meant the FCC's regulatory authority over the Internet to be. "I have arrived at this conclusion both as a supporter of the principle of network neutrality and as one who remembers what the Congress intended when it created the distinction between 'telecommunications services' and 'information services' in the 1996 Act.
Dingell said the FCC's current plan is "fraught with risk," including getting overturned by the courts and deterring past and future investment.
He pointed out that the FCC is basing its switch from the earlier Title I-only classification pushed by former chairmen Bill Kennard (Democrat) and Michael Powell (Republican) on the three-judge dissent in the Brand X Supreme Court case, and asked whether he has any evidence any of the six in the majority were ready to switch and support Title II.
FCC General Counsel Austin Schlick has said that what the majority supported was not Title II per se, but the FCC's authority to classify it as such and by extension its expertise and authority to change that classification based on new facts and policy.
But Dingell, citing a dozen years in which no legislation has been introduced, much less passed, to change the FCC's interpretation of its authority, says it would be better for the FCC to work with Congress to secure the needed authority rather than "following a tortured legal path premised on a minority opinion written by Justice Antonin Scalia [who wrote the dissent in Brand X]."
An FCC spokesperson had no comment on Dingell's latest letter, but the chairman's chief of staff, Edward Lazarus has been holding discussions with stakeholders on both sides of the Internet regulation debate about a possible legislative fix.
The chairman has billed the "third way" itself as a compromise between heavy handed regulation and doing nothing in the wake of the Comcast/BitTorrent court decision that put the FCC's regulatory authority over network management and Internet access in doubt.
