Pennsylvania Lawmaker Asks FCC to Change Policy on Broadband Internet Access

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.