The chairman of the Federal Communications Commission last week called for a reclassification of broadband from an information service—its taxonomy since 2002--to a telecommunications service, a reordering that would bring Internet service providers more clearly within the agency’s regulatory authority.
FCC chairman Julius Genachowski, in outlining the FCC’s plan for broadband in light of an April court decision (Comcast v. FCC) denying it the power to compel ISPs to treat all Internet traffic the same, proposed that the agency regulate only the transmission component of broadband access but not content, pricing, applications, e-commerce or services.
Grouping ISPs with telephone companies would give the FCC the authority to impose so-called net neutrality—prohibiting an ISP from slowing or denying user access to an application or service--a say-so it sought but was denied in the Comcast ruling.
Genachowski said that the FCC seeks the broadband reclassification to enable it to “perform basic oversight functions and pursue the basic broadband-related policies” long considered “essential and appropriate.”
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He said that “consumers do need basic protection against anticompetitive or otherwise unreasonable conduct by companies providing the broadband access service to which consumers subscribe for access to the Internet.”
Genachowski stopped well short, however, of suggesting that FCC oversight on high speed Internet access mirror that of telephone companies, offering that such obligations and regulations were inappropriate for broadband.
“FCC policies should not include regulating Internet content, constraining reasonable network management practices of broadband providers, or stifling new business models or managed services that are pro-consumer and foster innovation and competition,” he said.
The FCC’s latest overture to sort out its role in regulating broadband access follows the rollout last month of its National Broadband Plan, whose goal is to extend high speed Internet access to some 100 million homes in the next 10 years.
The solution that enables the FCC to follow through with its grand design and to carry out what Genachowski called its “backstop role,” lies in a “third-way approach,” essentially a compromise between the FCC’s current function of exercising only “ancillary” authority over ISPs, or imposing a full complement of obligations and regulations ill-suited to broadband.
Recognizing the “transmission component” of broadband provides the FCC the “modest authority it needs to foster a world-leading broadband infrastructure,” he said.Divided support from FCC Commissioners, industry players
Genachowski’s plan is supported by some FCC commissioners but not by all.
Commissioner Michael Copps said that the plan “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.”
Commissioner Mignon Clyburn said that she supports the “solid middle ground through which the Commission can effectuate its Congressional mandate to promote universal access to broadband and protect and empower consumers on line. It is essential that the Commission reestablish the authority that most people believed it had prior to the Court’s decision in Comcast v. FCC.”
However, Commissioners Robert McDowell and Meredith Baker said that the FCC’s plan is “disappointing and deeply concerns us. It is neither a light-touch approach nor a third way. Instead, it is a stark departure from the long-established bipartisan framework for addressing broadband regulations that has led to billions in investment and untold consumer opportunities.”
Telecommunications companies also contended that the FCC had reached too far.
"We believe that the chairman's stated approach is legally unsupported,” said Tom Tauke, Verizon executive vice president of public affairs, policy and communications.
“The regulatory and judicial proceedings that will ensue can only bring confusion and delay to the important work of continuing to build the nation's broadband future,” Tauke said.
Similarly, Kyle McSlarrow, president of the National Cable and Telecommunications Association, the cable industry’s principal trade organization, in calling the FCC’s proposal “disappointing,” said that the agency had failed to make its case for reclassification of broadband.
“Nothing has occurred either in the marketplace or in broadband technology to change the fact that our broadband services are ‘information services,’ and not ‘telecommunications services’ that are regulated under a model designed for a previous era and for very different services,” McSlarrow said in a statement.
The NCTA, based in Washington, D.C., positions the cable industry as the largest provider of broadband in the U.S. with some 40 million customers in aggregate.
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