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FCC General Counsel Austin Schlick

Pennsylvania Lawmaker Asks FCC to Change Policy on Broadband Internet Access

in Broadband Updates/Broadband's Impact/FCC/National Broadband Plan/Net Neutrality by

WASHINGTON, June 3, 2010 – Rep. Mike Doyle sent a letter to the chairman of the Federal Communications Commission last week requesting changes in regulatory policy regarding broadband internet access.

The Pennsylvania Democrat’s letter was prompted by a series of ads sponsored by the conservative grassroots organization Americans for Prosperity, which criticized the FCC’s proposed “third way” regulatory framework. Doyle is a member of the House Energy and Commerce Committee’s Communications, Technology and the Internet Subcommittee.

“[AFP is] suggesting that you are about to take over the internet,” Doyle wrote to agency Chairman Julius Genachowski. “As you definitely know, those allegations are untrue. Setting those ads’ fear, uncertainty and doubt aside, I have heard from many constituents and small businesses in my district that are worried of having new and innovative business ideas restricted by a prospective customer’s broadband provider…As the commission’s National Broadband Plan makes clear, more needs to be done to spur the deployment and promote the accessibility of open broadband networks for all consumers, including rural, low-income and disabled Americans.”

The National Broadband Plan is a program implemented under the American Recovery and Reinvestment Act, and one of its goals is spurring the development of local broadband providers, especially in areas where it would not be cost-effective for larger companies such as Comcast to operate. One persisting question raised by the plan is how the FCC should regulate broadband providers, including the larger firms, with the aim of insuring a predictable regulatory framework, as well as fair access for Americans.

Currently, broadband access is regulated as an information service under Title I of the 1996 Telecommunications Act, but in the aftermath of the recent court decision Comcast v. FCC, which struck down some of the FCC’s regulatory powers as too broad for the legal constraints of Title I, some have suggested that the FCC should reclassify broadband so as to reinstate those regulations. Rep. Doyle is among that group.

“I have come to the conclusion that if the Federal Communications Commission is to enact those goals, then we are left with only two options that I believe must happen concurrently,” Doyle’s letter continues. “First, the FCC must reclassify residential broadband services as Title II – Telecommunications Services.”

Title II of the Telecommunications Act currently governs broadcast services, such as telephone service and television broadcasting. While reclassifying broadband access under Title II would provide the FCC with solid legal grounding for reinstating its pre-Comcast regulations, critics have suggested that the plan would also subject service providers to excessive regulation.

According to FCC General Counsel Austin Schlick, “[The] Title II approach would trigger a detailed regulatory regime (comprising 48 sections of the United States Code) that the commission has successfully refrained from applying to broadband Internet services. Although there would be clear rules of the road for broadband, those rules would be inconsistent with the current consensus approach of regulatory restraint.”

Rather than apply Title II in full, the FCC has instead suggested that it will pursue what Chairman Genachowski has referred to as the “third way” approach, which, while it would technically reclassify broadband service under Title II, would only apply those elements of Title II which are specifically tailored to be relevant to internet access.

Doyle acknowledged this possibility in his letter, though he did not specifically endorse it. “Instead of taking us back to 1996-era regulations, you proposed that the FCC forbear from enforcing certain requirements under that law, including wholesaling requirements and price cap regulations,” Doyle wrote. “I am sure that you did not come to this decision lightly, and I hope that as the commission decides which regulations to forbear and which to enforce, that you keep consumers in the front of your mind.”

He also requested that the FCC review and possibly update the Telecommunications Act of 1996.

FCC Top Lawyer Outlines Legal Framework Behind Net Neutrality Debate

in Broadband Updates/Broadband's Impact/FCC/Net Neutrality by

WASHINGTON, May 6, 2010 – FCC General Counsel Austin Schlick on Thursday outlined the legal framework behind the narrow and tailored approach to broadband communications services that agency Chairman Julius Genachowski introduced for public discussion.

There is bipartisan agreement throughout the FCC, Congress and industry regarding three policy principles.

First, the commission does not regulate the Internet.  Section 230 of the Communications Act says the Internet and other interactive computer services have flourished to the benefit of all Americans with a minimum of government regulation.  Second, dial-up Internet access service is subject to the regulatory rules for telephone service.

This protects the American households that still depend on ordinary telephone service to dial-in to the Internet.

Third, for broadband access services, the commission refrains from regulation when possible, but will step in when necessary to protect consumers and fair competition.  This approach has been expressed in previous FCC decisions such as the Wireline Broadband Order and its Internet Policy Statement in September 2005.

The D.C. Circuit Court decision in the Comcast case recognizes the commission’s ability to adopt rules concerning services specifically addressed in the Communications Act.  However, because the commission classified cable modems entirely as information services, which is not a category subject to any specific statutory rules, it could not enforce Title II’s nondiscrimination and consumer protection principles in the cable modem context.

The commission has three options in the wake of the Comcast decision regarding broadband policy.

First, the commission can continue to address broadband issues under Title I ancillary jurisdiction.  According to General Counsel Schlick, this would not be the ideal solution because it would not allow the commission to directly promote broadband deployment and adoption or protect broadband competition and consumers.

Second, the commission can reclassify broadband Internet access services as telecommunications services and apply the Title II of the Communications Act in full.  According to Schlick, this would not be an effective solution because it is inconsistent with the current consensus approach of regulatory restraint.

The third option is to adopt Justice Scalia’s bifurcated view of broadband Internet access service from the dissent in the Brand X decision.  This view focuses on the idea that the computing functionality and broadband transmission component of retail Internet service must be acknowledged as two separate things.  According to Schlick, this view is consistent with the majority opinion in Brand X, and would also sync up the commission’s legal approach with its policy of keeping the Internet unregulated while exercising some supervision of access connections.

Furthermore, Schlick describes how six provisions in Title II can help the commission implement the consensus policy approach and maintain the same legal framework as under Title I.  Specifically, Sections 201, 202 and 208 collectively forbid unreasonable denials of service and allow the commission to enforce the prohibition.

Applying these sections to broadband access service would hold broadband access providers to standards they agree should be met and would address the problem of secret interference with subscribers’ lawful Internet transmissions.  Section 222 requires providers of telecommunications services to protect the confidential information they receive in the course of providing service and Section 255 requires telecommunications services and equipment to be accessible to individuals with disabilities.

In addition to the reclassification discussion, Schlick outlined how Title II classification has benefited wireless communications.

Schlick then addressed some concerns that industry has already expressed about this possible reclassification.  He clarified that reclassification would not necessarily open the door to new network unbundling authority.  In addition, Schlick stated that there would be no rate regulation regarding prices or pricing structure for broadband access service.  Also, the commission has broad authority to preempt inconsistent state requirements when they frustrate valid federal policies.  Therefore, there should no inconsistent state regulation.

Schlick also states that this forbearance approach would be difficult to overturn and should provide greater, not lesser, protection against excessive regulation than the Title I approach.  In addition, a narrow and tailored forbearance approach to solving the Comcast problem appears to be workable.

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