FCC opts to re-regulate broadband

FCC Chairman Julius Genachowski, on May 6, announced support for reclassifying the transmission component of broadband Internet access service as a Title II telecommunications service.

In light of the U.S. Circuit Court's ruling in Comcast v. FCC — what many in the telecommunications industry deemed a major setback for the FCC — Chairman Genachowski proposed this legal approach to broadband regulation.

Over the past decade, the FCC had ruled that broadband access service — whether delivered over cable, DSL, fiber, or wireless — was a more lightly-regulated "information service." With his May 6 announcement, the FCC Chairman proposes to reverse those decisions and give the Commission greater authority to regulate the transport portion of Internet access.

Chairman Genachowski emphasized that under this approach, the Commission would simultaneously renounce — that is, forbear from — application of many sections of the Communications Act to broadband. Specifically, he said the Commission should not require unbundling of broadband facilities or impose price regulation on broadband services. Further, he said, FCC policies should not regulate Internet content, constrain reasonable network management practices of broadband providers, or stifle business models or managed services.

In deciding to take this approach to broadband reclassification, Chairman Genachowski dismissed an alternative which would have established a stronger legal basis for FCC "Title I 'ancillary' authority" than the legal arguments in the Comcast case. The Court's Comcast decision left open this possibility.

The FCC plans to move forward with a Notice of Proposed Rulemaking seeking public comment on this approach.

The Third Way: A narrowly tailored broadband framework (FCC)

F.C.C. Push to Regulate Broadband Is Expected (The New York Times)