FCC boss Julius Genachowski outlined his plan for regulating broadband lines today. Genachowski wants to adopt “net neutrality” rules that require Internet providers like Comcast and AT&T to treat all traffic equally, and not to slow or block access to websites. The Washington Post reported earlier this week that Genachowski was leaning the other way, moving away from regulation.
The FCC’s strategy, reflected in the National Broadband Plan, was thrown into disarray by a federal appeals court ruling last month which cast doubt on the FCC’s authority over broadband lines.
The court ruled the FCC had overstepped when it cited Comcast in 2008 for slowing some customers’ Internet traffic.
Now Genachowski hopes to reclassify broadband as a common-carrier service, regulated under Title II of the Communications Act. This move was necessary after a U.S. appeals court ruled last month that the agency does not have the authority to enforce network neutrality rules, stemming from a case involving Comcast’s throttling of peer-to-peer traffic.
The FCC said in a statement today that the agency wouldn’t apply the full brunt of existing phone regulations to Internet lines, but would set “meaningful boundaries to guard against regulatory overreach.”
The legal theory that the Comcast opinion found inadequate has its roots in a series of controversial decisions beginning in 2002 in which the Commission decided to classify broadband Internet access service not as a “telecommunications service” for purposes of the Communications Act, but as something different–an “information service.”As a result of these decisions, broadband became a type of service over which the Commission could exercise only indirect “ancillary” authority, as opposed to the clearer direct authority exercised over telecommunications services.
I directed the FCC General Counsel and staff to identify an approach that would restore the status quo–that would allow the agency to move forward with broadband initiatives that empower consumers and enhance economic growth, while also avoiding regulatory overreach. In short, I sought an approach consistent with the longstanding consensus regarding the limited but essential role that government should play with respect to broadband communications.
As General Counsel Austin Schlick will explain more fully in his statement today, under this narrow and tailored approach, the Commission would:
- Recognize the transmission component of broadband access service–and only this component–as a telecommunications service;
- Apply 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 renounce–that is, forbear from–application of the many sections of the Communications Act that are unnecessary and inappropriate for broadband access service; and
- Put in place up-front forbearance and meaningful boundaries to guard against regulatory overreach.
The FCC’s proposal doesn’t apply a full-on Title II (telecommunications) assault on broadband — sometimes referred to a “nuclear option” — but will instead take a significantly lighter touch with aspects of Title I (information service like broadband) on how common carrier rules could be enforced on ISPs.
Regulating broadband under rules designed for traditional phone networks is likely to trigger a vigorous lobbying battle, with big phone and cable companies pitted against Silicon Valley giants and consumer advocates, says Fierce Wireless.
Bernstein Research analyst Craig Moffett said the Commission has chosen the “nuclear option” – and the fallout is likely to be widespread.
Tom Tauke, Verizon executive vice president of public affairs said, “Today’s FCC announcement raises obvious concerns about whether the chairman is suggesting a path that could ultimately harm consumers and inhibit the innovation and investment he wants to encourage. We believe that the chairman’s stated approach is legally unsupported.”
The FCC is expected to eliminate on all but six of the four dozen or so rules that apply to phones. But regulations over the rates and a requirement for service providers to open their lines to competitors would be two rules for phones that broadband providers will certainly protest if they are included in the final plan.
Google, Amazon and EBay are among Web companies backing stronger FCC powers over Internet providers, with support from consumer advocacy groups. Comcast, AT&T and U.S. access providers have said new regulations aren’t needed and could damp investment.
The five-member commission is required to vote on the approach, which will be put out for public comment and revision before final rules are set. The process could take months and may be subject to legal challenges.
