Wednesday, May 5, 2010

FCC Chairman Outlines "The Third Way: A Narrowly Tailored Broadband Framework"

FCC Chairman Julius Genachowski outlined a "Third Way" for regulating Internet traffic and services -- a new legal framework aimed at restoring the status quo consensus that existed prior to the court decision that vacated the FCC's authority to regulate the way Comcast manages peer-to-peer traffic on its network.

Genachowski said he supports a light-touch regulatory approach that encourages investment in network infrastructure but that gives consumers "basic protection against anticompetitive or otherwise unreasonable conduct by companies providing the broadband access service (e.g., DSL, cable modem, or fiber) to which
consumers subscribe for access to the Internet."

However, the Comcast decision sharply reduces the FCC's ability to protect consumers and promote competition using its "ancillary" authority, and creates serious uncertainty about its basic oversight functions as well as its ability to pursue the broadband-related policies.

Genachowski noted that two primary options have been debated since the Comcast decision:

One, the Commission could continue relying on Title I "ancillary" authority, and try to anchor actions like
reforming universal service and preserving an open Internet by 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."

Two, the Commission could fully "reclassify" Internet communications as a "telecommunications
service," restoring the FCC's direct authority over broadband communications networks but also
imposing on providers of broadband access services dozens of new regulatory requirements.

Genachowski is proposing a "third way" -- the FCC 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

  • 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

Genachowski argues that this approach would place federal policy regarding broadband communications services, including the policies recommended in the National Broadband Plan, on a sound legal footing while establishing meaningful boundaries and constraints to prevent regulatory overreach. It would also allow the FCC to move forward with its National Broadband Plan.

See also