FCC chairman defends broadband regulation move

The agency would reclassify broadband as a common carrier service, but limit regulation

The U.S. Federal Communications Commission will move to reclassify broadband transmission as a regulated, common-carrier service, but exempt many broadband services from new regulations in an effort to find a middle ground between no oversight and heavy-handed new authority, the agency's chairman said Thursday.

The FCC's move to reclassify broadband as a common-carrier service regulated under Title II of the Communications Act, announced late Wednesday, is necessary after a U.S. appeals court ruled last month that the agency does not have the authority to enforce informal network neutrality rules in a case involving Comcast's throttling of peer-to-peer traffic, FCC Chairman Julius Genachowski said Thursday.

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The agency will also forbear from most common-carrier types of regulations for broadband, Genachowski said.

The Comcast decision raises questions about the commission's ability to pass net neutrality rules prohibiting broadband providers from selectively blocking Web content and from implementing parts of the agency's national broadband plan, including a plan to revamp a telephone service subsidy to broadband deployment, Genachowski said in a statement.

"The goal is to restore the broadly supported status quo consensus that existed prior to the court decision on the FCC's role with respect to broadband Internet service," Genachowski said.

The Comcast decision, by the U.S. Court of Appeals for the District of Columbia Circuit, "does cast serious doubt" on the FCC's exercise of authority over broadband service, Genachowski said. The FCC does not want to face a court battle every time it tries to assert indirect, so-called ancillary, authority over broadband service, as it has it recent years, but it also does not want to give itself heavy regulatory powers over broadband, he said.

Genachowski said he has "serious reservations" about both of those approaches.

Claiming full Title II authority over broadband would "subject the providers of broadband communications services to extensive regulations ill-suited to broadband," he said.

Genachowski criticized both "extreme" alternatives available to the commission -- taking no action, or claiming full common-carrier regulatory authority. "Heavy-handed prescriptive regulation can chill investment and innovation, and a do-nothing approach can leave consumers unprotected and competition unpromoted, which itself would ultimately lead to reduced investment and innovation," he said.

The FCC would presumably have to launch an extensive rulemaking proceeding to reclassify broadband as a common-carrier service. An FCC spokeswoman didn't immediately respond to an email asking for the agency's next steps.

Genachowski's announcement received mixed reviews.

Executives from five broadband suppliers said Wednesday they're concerned that new regulations would cause broadband providers to slow their investments in network expansion and upgrades.

"If people like Verizon start slowing down their investment in networking infrastructure, we're going to be hit pretty hard," said Noam Lotan, CEO of MRV Communications, a California manufacturer of networking equipment. "Any regulation you start introducing, the first thing that will happen is uncertainty."

While this FCC may back away from widespread regulation of broadband, future commissions may not, said Bruce Mehlman, co-chairman of the Internet Innovation Alliance, a broadband deployment advocacy group with members including AT&T and Alcatel-Lucent.

"While an enlightened Chairman like Genachowski may indeed bring a light touch during his tenure, regulatory agencies tend to ultimately use all of the authority in their arsenal and more, and that would be bad for broadband," Mehlman said.

Comcast, in the center of the controversy, said it was disappointed by the FCC's move to regulate broadband. However, the broadband provider is prepared to work with the agency to determine if there is a compromise way to "take limited but effective measures to preserve an open Internet and implement critical features of the National Broadband Plan, but does not cast the kind of regulatory cloud that would chill investment and innovation by ISPs," said Sena Fitzmaurice, vice president of government communications for Comcast.

Others were more upbeat about Genachowski's announcement.

Public Knowledge, a supporter of new net neutrality rules, is "generally pleased" with the direction outlined by Genachowski, although it is concerned that agency officials suggested they would stay away from requiring broadband providers to share their lines with competitors, said Gigi Sohn, the organization's president.

"We have said for months that the right path for the commission to take would be to examine all the possibilities for the best way to protect consumers and guarantee the expansion of broadband," she said in an email. "The method the FCC is expected to propose should be on the table, and we are glad it is."

The "Title II lite" approach is the right one, added Tyrone Brown, president of Media Access Project, a media reform group and net neutrality backer. The FCC's new approach will protect free speech rights of Internet users, he said.

"This is a defining moment for Chairman Genachowski," Brown said in a statement. "He was the object of a massive lobbying campaign mounted by some of the most powerful corporations in the country, and he held his ground. The telephone and cable companies fought this outcome because they know that the alternative ... is difficult if not impossible under the recent court decision in Comcast v. FCC."

Copyright © 2010 IDG Communications, Inc.

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