FCC Chairman Unveils New Strategy to Cope with ‘Network Neutrality’

WASHINGTON, May 6, 2010 – FCC Chairman Julius Genachowski this morning announced his agency’s plan to take steps to deal with the issue of broadband regulation.

The agency made its announcement in the shadow of the recent court decision effectively neutering the FCC from governing the speed of data that flows through the Internet, also known as network neutrality.

That ruling determined that the FCC claimed too great an authority over the network neutrality issue.

However, the court left it open that the commission would be able to claim Title II authority if necessary, but this would limit some of the actions that the FCC seeks.  The other option would be to reclassify internet communications as a telecommunications service.

The agency concluded that reclassifying the service was a bad option: “While it would clarify the legal foundation for broadband policy, it would also subject the providers of broadband communications services to extensive regulations ill-suited to broadband.  Title II, for example, includes measures that, if implemented for broadband, would fail to reflect the long-standing bipartisan consensus that the Internet should remain unregulated and that broadband networks should have only those rules necessary to promote essential goals, such as protecting consumers and fair competition.”

“Title II” refers to the portions of the Communications Act under which telephone companies have traditionally been regulated. Increasingly, broadband services have been regulated under another portion of the act (Title I), and which allowed greater flexibilities for industry.

To achieve the goals set out by the National Broadband Plan released in March, the chairman announced a new “third way” that would recognize the transmission component of broadband access service — and only this component — as a telecommunications service.

Additionally, the FCC seeks to renounce application of many sections of the Communications Act that it sees as unnecessary and inappropriate for broadband access service.

And it wants to institute “meaningful boundaries to guard against regulatory overreach.”

“These specific regulations will most importantly allow the commission to achieve the goals set out in the national broadband plan for transforming universal service and bringing access to the disabled among other programs,” said Genachowski.

The agency reiterated that it plans to focus on the transmission and not the content. The industry generally agrees upon most of the provisions that would be applied under Title II  and sees the FCC as having the authority to enforce them under ancillary authority.

This approach is not a new concept. The FCC chairman argues that “Congress mandated that the FCC subject wireless communications to the same Title II provisions generally applicable to telecommunications services while also directing that the FCC consider forbearing from the application of many of these provisions to the wireless marketplace. The commission did significantly forbear, and the telecommunications industry has repeatedly and resoundingly lauded this approach as well-suited to an emerging technology and welcoming to investment and innovation. In short, the proposed approach is already tried and true.”

While this approach will allow for the FCC to continue its work without having to jump through numerous legal hoops, the commissioner does hint that Congress may need to act to solidify the commission’s authority.

“Should congressional leaders decide to take up legislation in the future to clarify the statute and the agency’s authority regarding broadband, the agency stands ready to be a resource to Congress as it considers any such legislative measures.  In the interim, however, this approach would ensure that key initiatives to address pressing national challenges can move forward,” said Genachowski.

The commission yesterday received letters of support from House Energy and Commerce Committee Chairman Henry Waxman and Senate Commerce, Science and Transportation Committee Chairman John Rockefeller:

They wrote: “We believe that it is essential for the commission to have oversight over these aspects of broadband policy, because they are vitally important to consumers and our growing digital economy.  For this reason, in the near term, we want the agency to use all of  its existing authority to protect consumers and pursue the broad objectives of  the National Broadband Plan.

In the long term, if there is a need to rewrite the law to provide consumers, the commission and industry with a new framework for telecommunications policy, we are committed as committee chairmen to doing so.”