FCC to Take Up Broadband Reclassification in June

Commission slates controversial plan to strengthen broadband regulatory authority for agenda on next month's meeting amid intensifying opposition in Congress.

By Kenneth Corbin | Posted May 28, 2010
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The Federal Communications Commission plans to begin the contentious process of establishing a firmer regulatory grip on the Internet services sector at its monthly meeting in June.

When they convene June 17, the commissioners will vote on a notice of inquiry seeking comment on the reclassification of broadband as a regulated telecommunications service, a move that has sparked vigorous opposition from Internet service providers and hundreds of members of Congress, despite the promise of the FCC chairman he will enact meaningful restraints to shield the industry from the most burdensome compliance requirements established for monopoly-era phone companies.

The agency announced that its notice of inquiry will seek comments from interested parties on three possible scenarios.

First, it is asking for a legal analysis of its authority over the Internet services sector if it left broadband in its current classification, a so-called Title I information service.

Then it invites comment on the opposite tack, asking for input on the "legal and practical consequences" of full-throttle regulation that would apply all of the Title II telecommunications requirements to ISPs.

Finally, the commission is seeking feedback on the so-called "third way" that Chairman Julius Genachowski has outlined, describing a light-touch regulatory approach that would allow the FCC to enact consumer protections like net neutrality rules and act on the recommendations of its national broadband plan, while exempting the industry from the more burdensome Title II obligations.

Genachowski's already heard an earful. Earlier this week, Rep. Gene Green (D-Texas) delivered a letter to the FCC with the signatures of more than 70 of his Democratic colleagues in the House urging against broadband reclassification, arguing that it would create an environment of regulatory uncertainty that would chill investments in network infrastructure, and likely result in a protracted legal battle.

Those arguments are often given voice by Republican lawmakers and industry groups, who have a consistent track record of opposing any effort to enact net neutrality obligations. House GOP leaders and more than three dozen senators have already warned about the FCC's proposal. Then today, 171 Republican members added their names to a letter opposing the chairman's plan.

The issue of the FCC's authority over the broadband sector only recently emerged as a hot-button policy issue. In April, a federal appeals court vacated the commission's 2008 order punishing Comcast (NASDAQ: CMCSA) for secretly blocking traffic on its data network, ruling that the FCC's implied, or ancillary, authority under Title I did not give it a mandate to enforce policies such as net neutrality.

By the reasoning of the FCC's legal team, that decision put the commission on uncertain footing as it looks ahead to many of the recommendations in the broadband plan delivered to Congress in March, including the chief priority of overhauling the Universal Service telephone subsidy to fund broadband service.

"We have these recommendations, and it turns out that under the Comcast decision, as well as under the language of the Universal Service program, the information services classification that was found wanting in the Comcast case also prevents us from implementing many of these core objectives for innovation in the broadband plan," FCC General Counsel Austin Schlick said at an event in Washington earlier this week.

Critics of the FCC's plan argue that reclassification will not resolve the regulatory uncertainty that arose from the Comcast decision. Instead, they argue that it falls to Congress to take up the issue and enshrine in statute the appropriate role for the commission to play in the broadband services sector.

Democratic leaders of the relevant committees and subcommittee in both chambers have announced their plans to begin the process of overhauling the Communications Act, but FCC officials have said that they need to act in the interim to implement the broadband plan.

On the five person commission, Genachowski's two Democratic colleagues have expressed support for his proposal, while the two Republicans have argued against it.

Kenneth Corbin is an associate editor at InternetNews.com, the news service of Internet.com, the network for technology professionals.

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