How the FCC will vote is certain, what’s to be approved isn’t

by Steve Blum • , , , ,

Tomorrow should be the big day. Common carrier regulation of broadband infrastructure and service is scheduled to be on the table at the FCC. There’s a possibility it could be bumped a month, though. Republican commissioners Ajit Pai and Michael O’Rielly want it delayed. Actually, they want it stopped altogether. But democrats hold three of the five commission seats, so that’s a sideshow.

One of the democrats, Mignon Clyburn, is reportedly pushing chair Tom Wheeler to make changes. Since this is all happening behind closed doors, it’s not certain if she wants to pull back or double down, or just shuffle things around for whatever reason. And there are likely others twisting Wheeler’s arm, too.

Assuming it does come to a vote, though, the outcome is a foregone conclusion: the democratic party appointees – Clyburn, Wheeler and Jessica Rosenworcel – will vote in favor; Pai and O’Rielly will vote against.

What we’ll learn from the meeting are the critical details and actual language of the new rules. Probably. The FCC sometimes takes several days to publicly post the full text of decisions, but given the intense attention on this issue it’s likely to move quickly. If it doesn’t, count on someone scanning a hard copy – official or bootleg – and pushing it out.

Once approved, the new rules will take effect after the formalities have been completed. Expect court challenges and congressional blustering, but, revolutionary or not, this decision is in the FCC’s regulatory comfort zone and the working assumption is that it’ll stick.

Commissioners will also vote – again, almost certainly in favor and split 3 to 2 on party lines – on preempting two particular state bans on municipal broadband. Wheeler said these decisions will send “a clear message and provides precedent for how the Commission would view similar restrictions”. The FCC is on shakier legal ground, so we’ll see a couple years of litigation before there’s any hard effect, if at all.

In the meantime, state legislators will, at least, look over their shoulders when considering any muni broadband bills and, at most, begin crafting statutory language that skirts around the FCC’s decision. There are any number of lobbyists from Comcast, AT&T, Verizon and the rest who will be happy to help.