Genachowski Unveils 'Third-Way Approach' For Net Neutrality Regulation
May 6, 2010 at 11:03 AM (PT)
FCC Chairman JULIUS GENACHOWSKI, as expected, unveiled his plan to regulate "Net neutrality" with what he called "a third-way approach" that puts only the transmission component of broadband access service under the common carrier regulatory scheme of Title II. The move is an attempt to avoid the broad ramifications of placing all of the Internet under Title II, as well as a response to the court invalidation of the FCC's authority to regulate Net neutrality in the COMCAST BitTorrent-throttling case.
GENACHOWSKI called the plan, outlined by General Counsel AUSTIN SCHLICK, "a legal anchor that 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."
Under the proposal, the Commission would "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" to the transmission component of broadband access service. At the same time, the Commission would "(s)imultaneously renounce -- that is, forbear from -- application of the many sections of the Communications Act that are unnecessary and inappropriate for broadband access service; and (p)ut in place up-front forbearance and meaningful boundaries to guard against regulatory overreach."
GENACHOWSKI said that the plan "will place federal policy regarding broadband communications services, including the policies recommended in the National Broadband Plan, on the soundest legal foundation, thereby eliminating as much of the current uncertainty as possible"; that the narrow approach "will treat 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"; would "restore the status quo" of pre-COMCAST case obligations and regulatory authority, including not changing "established policy understandings at the FCC, such as the existing approach to unbundling or the practice of not regulating broadband prices or pricing structures"; and would "establish meaningful boundaries and constraints to prevent regulatory overreach."
A public process for comment is planned, GENACHOWSKI said, adding, "The issues presented by the COMCAST decision are a test of whether WASHINGTON can work—whether we can avoid straw-man arguments and the descent into hyperbole that too often substitute for genuine engagement. The COMCAST decision has created a serious problem. I call on all stakeholders to work with us productively to solve the problem the COMCAST decision has created in order to ensure a solid legal foundation for protecting consumers, promoting innovation and job creation, and fostering a world- leading broadband infrastructure for all Americans."
Copps: Protect Consumers First
Commissioner MICHAEL COPPS' response to GENACHOWSKI's plan said that the proposal "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. 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. For example, it is clear that broadband will merit some forbearance from certain Title II stipulations, but we must avoid another forbearance binge. We experienced a mad rush to forbearance in previous Commissions and it usually created many more problems than it resolved. We must also understand that the world of technology changes at warp speed and we must protect against any unintended consequences of forbearance or closing other doors that may need to be opened down the road. As we address the short-term legal problems before us, I hope we will have the good sense to avoid boxing ourselves in on our ability to react to future changes in technology and the economy. The path we start down today must do more than just put this agency's authority over broadband back on life-support -- it must ensure our going-forward, healthy ability to protect consumers. One near-death experience is enough."