Seeking to re-establish the FCC’s legal authority after losing a court decision to Comcast, FCC chairman Julius Genachowski announced last week a plan that reclassifies broadband technology as a hybrid between an information service and a utility.
By doing this, the FCC will regain sufficient power to regulate Internet traffic under existing law. Genachowski’s plan is virtually assured victory, since he has the support of the Democratic majority on the FCC as well as the blessing of key members of Congress.
The chairman said he was not happy with the two conventional options posed after the FCC lost the Comcast case. One option was to pursue the National Broadband Plan the same as before and risk more negative court decisions down the road.
The other was to fully reclassify Internet communications as a telecommunications service. That would have resolved the FCC’s legal authority, but would have required more regulation than Genachowski felt was warranted. Thus, the FCC attorneys came up with what the chairman called “the third way.”
A third way recognizes the transmission component of broadband access service — and only this component — as a telecommunications service. It applies only a handful of provisions of Title II. Simultaneously, it renounces the application of many sections of the Communications Act that are unnecessary and inappropriate for broadband access service and guards against regulatory overreach.
Genachowski said this would offer a sound legal foundation for the FCC to proceed into the future and eliminate uncertainty about the legality of its decisions. It would also, he said, restore the status quo of the FCC’s approach before the Comcast decision. Meaningful boundaries and constraints would be established to prevent regulatory overreach.
The Comcast decision, Genachowski said, has created a serious problem. His approach is needed to move forward on broadband initiatives. He said he is asking his FCC colleagues to launch a public process seeking comment on issues surrounding the proposal. This is expected to happen almost immediately.