FCC Chairman presents ‘narrowly tailored’ broadband framework, gains opposition

May 7, 2010
Federal Communications Commission (FCC) Chairman Julius Genachowski revealed plans to regulate broadband service transmission in a six-page document released today.

MAY 7, 2010 By Courtney Howard -- Federal Communications Commission (FCC) Chairman Julius Genachowski revealed plans to regulate broadband service transmission in a six-page document released yesterday.

Genachowski formulated his plan, called the “third way,” in an effort to “restore the broadly supported status quo consensus that existed prior to the court decision on the FCC’s role with respect to broadband Internet service.”

“The court decision” references the April 6, 2010 finding by the U.S. Court of Appeals for the District of Columbia that the FCC does not have the authority to order cable MSO Comcast Corp. to stop blocking subscriber access to the BitTorrent file-sharing system. Many have speculated as to the FCC’s next move in light of the recent decision; and, while Genachowki’s announcement has quelled rumors, it has also ignited a debate—even among fellow FCC commissioners.

Genachowsi touts his statement as “a framework to support policies that advance our global competitiveness and preserve the Internet as a powerful platform for innovation, free speech, and job creation.” Yet, he insists that he is “open to all ideas on the best approach to achieve our country’s vital goals with respect to high-speed broadband for all Americans, and the Commission proceeding to follow will seek comment on multiple legal theories and invite new ideas.”

Genachowsi, in his statement, expresses his reservations about two approaches that have been debated since the Comcast decision: relying on Title I “ancillary” authority and indirectly drawing on provisions in Title II of the Communications Act (e.g., sections 201, 202, and 254) that give the Commission direct authority over entities providing “telecommunications services; and, reclassifying Internet communications as a “telecommunications service” and restoring the FCC’s direct authority over broadband communications networks while also imposing on broadband providers dozens of new regulatory requirements.

FCC General Counsel and staff then identified a “third way,” which gives the Commission “only the modest authority it needs to foster a world-leading broadband infrastructure for all Americans while definitively avoiding the negative consequences of a full reclassification and broad application of Title II,” says Genachowsi.

The “third way,” as described by General Counsel Austin Schlick, involves the Commission:

  • Recognizing the transmission component of broadband access service—and only this component—as a telecommunications service;
  • Applying only a handful of provisions of Title II (Sections 201, 202, 208, 222, 254, and 255) that, prior to the Comcast decision, were widely believed to be within the Commission’s purview for broadband;
  • Simultaneously renouncing application of the many sections of the Communications Act that are unnecessary and inappropriate for broadband access service; and
  • Putting in place up-front forbearance and meaningful boundaries to guard against regulatory overreach.

Virtues of the new approach, according to Genachowsi, include: placing federal policy on broadband communications services on a sound legal foundation and eliminating as much current uncertainty as possible; treating only the transmission component of broadband access service as a telecommunications service while preserving the longstanding consensus that the FCC should not regulate the Internet, including web-based services and applications, e-commerce sites, and online content; restoring the status quo; establishing boundaries and constraints to prevent regulatory overreach; and enabling the Commission to move forward on broadband initiatives that are vital for global competitiveness and job creation.

Genachowsi asks his Commission colleagues to join him in seeking public comment on this approach. Commissioners themselves have already issued statements about Genachowsi approach.

A statement by Commissioner Michael J. Copps states: “This plan can put us on the right road—if we travel that road swiftly, surely and with the primary goal of protecting consumers foremost in our minds. Frankly, I would have preferred plain and simple Title II reclassification through a declaratory ruling and limited, targeted forbearance—wiping the slate clean of all question marks. The quicker we can bring some sense of surety and stability to the present confusion emanating from the Comcast court decision, the better off consumers—and industry, too—will be.

“But we should welcome this step toward bringing broadband back under the Title II framework where it belongs,” Copps continues. “It was a travesty to move it in the first place, and those decisions caused consumers, small businesses and the country enormous competitive disadvantage. The devil will be in the details as we work to put the Commission back on solid legal footing.”

Commissioners Robert M. McDowell and Meredith A. Baker see things a different way. “This proposal is disappointing and deeply concerns us,” reads their joint statement. “It is neither a light-touch approach nor a third way. Instead, it is a stark departure from the long-established bipartisan framework for addressing broadband regulation that has led to billions in investment and untold consumer opportunities. It also poses serious ramifications across the globe.

“Without a specific mandate from Congress, the appellate courts are likely to hand the Commission another stinging rebuke for attempting to shatter the boundaries of its statutory authority,” reads the statement. This proposal risks the credibility of our institution: Government agencies simply cannot create new legal powers beyond those granted by Congress.

In the interim, as the Commission has been warned by a wide variety of investors, an attempt to foist burdensome rules excavated from the early-Ma Bell-monopoly era onto 21st Century networks will usher in a tumultuous new age of regulatory uncertainty that will inhibit the investment of risk capital America badly needs to improve and expand our broadband infrastructure and create jobs,” continues the joint statement.

McDowell and Baker close their statement calling Genachowsi recommendation a “dramatic step” and “unnecessary,” and saying they “look forward to learning from the debate and remain hopeful for a fair, transparent, and efficient process that leads to a final decision well rooted in both the facts and the law.”

It will be a very interesting (and, I’m sure, no less passionate) debate—and one which the general public will be watching, perhaps with their cursors hovering over the “download this torrent” button.

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