FCC Chairman Julius Genachowski's signature policy platforms of universal broadband access and net neutrality were dealt serious blows last month when the DC Court of Appeals ruled unanimously that FCC lacks the authority to force service providers to abide by its judgments.
The court's opinion ruled that the FCC has only “ancillary“ authority to regulate broadcast television re-transmitted over cable, not the authority to regulate data service.
This ruling is reflected in FCC Chairman Julius Genachowski's three-part “policy consensus“ statement. “This bipartisan consensus, which I support, holds that the FCC should adopt a restrained approach to broadband communications, one carefully balanced to unleash investment and innovation while also protecting and empowering consumers.“
Chairman Genachowski advocates a “light touch“ approach that bears in mind three central points of consensus:
1) FCC does not regulate the internet.
2) Dial-up service is subject to the same rules as telephone service.
3) FCC will refrain from regulating broadband whenever possible, but will step in when necessary to protect consumers and fair competition (the “light touch“).
FCC General Counsel Austin Schlick writes that “under Comcast, the FCC's 2002 classification decision greatly hampers its ability to accomplish a task the Commission unanimously endorsed in 2005: “ensur[ing] that broadband networks are widely deployed, open, affordable, and accessible to all consumers.“
“This undermining of settled understandings about the government's role in safeguarding our communications networks is untenable,“ writes Chairman Genachowski, saying that lawyers from “every quarter of the communications landscape“ are debating the soundest legal footing for the FCC to regulate broadband, and presents three options:
1) Stay the Course. Keep relying on Title I of the Communications Act and attempt to anchor actions like using the Universal Service Fund to increase broadband access and preserving an open Internet by indirectly drawing on sections 201, 202, and 254 of Title II of the Communications Act granting the Commission direct authority over entities providing “telecommunications services.“
2) Telephone-style regulation. Re-classify broadband internet services as telecommunications services and apply the full suite of decades-old provisions established in Title II of the Communications Act, designed for telephone networks.
3) Adopt a bifurcated view of broadband services. In Justice Scalia's dissenting opinion in National Cable and Telecommunications Association v. Brand X Internet Services, Inc., he concluded “computing functionality“ and broadband transmission component of retail Internet access service must be acknowledged as “two separate things.“ FCC plans to take a “light touch“ with Internet access services and stay “hands off“ of computing functionality, i.e. web-based content.
Chairman Genachowski favors option three, and has published a four-point plan of action to move forward with FCC's policy priorities.
- Only the transmission of broadband internet services will be viewed as a telecommunications service.
- Only a handful of provisions of Title II (Sections 201, 202, 208, 222, 254, and 255) will be applied to broadband. These sections, per Chairman Genachowski, were widely believed to be within the Commission's purview for broadband prior to the Comcast decision.
- Other sections of the Communications Act that are unnecessary and inappropriate for broadband access service will be renounced by FCC.
- Front-loaded forbearance and meaningful boundaries will protect service providers against regulatory overreach by FCC.
While 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.