FCC's McDowell against reclassification, citing courts

Robert McDowell, a member of the Federal Communications Commission, 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.

In a news briefing, McDowell, a minority Republican commissioner, said that a reclassification 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. McDowell added that FCC Chairman Julius Genachowski's push for new net neutrality rules appeared in trouble after the court decision.

Questions over the FCC’s ability to regulate broadband service providers emerged from a federal appeals court decision last month against the agency for sanctions it put on Comcast for net neutrality violations. The agency would need three votes from the five cmmissioners to reclassify broadband and so far Genachowski has not indicated whether he wants to do so.