Damn the courts, full speed ahead

FCC Chairman Julius Genachowski has decided to ignore the Washington, D.C., Circuit Court ruling and announced Wednesday that he’s going to regulate the Internet despite being told he has no authority to do so. Emboldened by a regulation-supportive Congress, including Democrats like Henry Waxman, D-CA; John (Jay) Rockefeller, D-WV; and John Kerry, D-MA; Genachowski confirmed to sources that the FCC would re-establish regulation over Internet services.

An FCC press release said, "The chairman will seek to restore the status quo as it existed prior to the court decision in order to fulfill the previously stated agenda of extending broadband to all Americans, protecting consumers, ensuring fair competition, and preserving a free and open Internet."

The release continues, “The chairman will outline a 'third way' approach between a weak Title I and a needlessly burdensome Title II approach ... It would 1) apply to broadband transmission service only the small handful of Title II provisions that, prior to the Comcast decision, were widely believed to be within the commission's purview, and 2) would have broad upfront forbearance and meaningful boundaries to guard against regulatory overreach."

"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," wrote Rep. Henry Waxman and Senator Jay Rockefeller in a letter to the FCC.

According to The Wall Street Journal, the chairman will propose a Notice of Inquiry to the entire commission next week. He aims to reclassify Internet lines, which would include both cable and telco Internet services, as common carrier services under Title 2 of the Communications Act. The FCC deregulated Internet lines back in 2002, and this move would reverse that decision.

Like much of Obama’s plans, these new regulations are based on a perceived crisis (spectrum), and the solution aims to be a rush job. FCC sources say Genachowski wants the new regulations to take effect this fall.

Expect any such FCC action to be promptly challenged in court. Said Bruce Mehlman, co-chairman of the Internet Innovation Alliance, "If the goal is maximizing broadband deployment and adoption ... new regulations such as these will not help. This sounds more like a political solution likely to imperil investment than a policy initiative that tackles actual challenges in the marketplace."

For a thorough discussion on why the FCC does not have the authority to regulate the Internet, see this post at TechCrunch.com.