FCC Begins Broadband Regulation Fight

WASHINGTON — The Federal Communications Commission voted on Thursday to begin the controversial process of reframing broadband service under communications law, a move aimed at clarifying the commission’s regulatory authority over the sector after a major legal setback.

By a three-to-two vote split along partisan lines, the FCC approved a notice of inquiry asking for comments from the public on how the agency should proceed with Chairman Julius Genachowski’s proposal to reclassify broadband as a regulated telecommunications service, while enacting checks against the commission’s oversight authority.

Genachowski initiated the reclassification process following an April ruling handed down by a federal appeals court voiding a 2008 FCC order punishing Comcast for secretly throttling traffic on its data network.

While that order was confined to a narrow set of circumstances surrounding Comcast’s network management practices, the court’s opinion struck down the legal theory the FCC had used to underpin its authority on a host of issues concerning the broadband sector, including many of the recommendations in the national broadband plan it issued less than a month before the court’s ruling.

That case “created uncertainty in an area that had been widely regard as settled,” Genachowski said at Thursday’s meeting.

The notice approved today asks for comments on three scenarios. The first scenario would leave broadband service unchanged as it currently rests under the Communications Act, as a so-called Title I information service.

The opposite extreme would reclassify broadband as a full-blown Title II telecommunications service, imposing on ISPs the same regulations that were born from monopoly-era telephone regulation, including oversight over pricing and the shared-access requirements that would require providers to open their networks to competitors.

The final approach, which Genachowski describes as a “third way,” seeks to strike a middle ground. The third way approach would reclassify broadband as a telecommunications service, but would require the agency to “forbear” from imposing the more burdensome requirements.

Genachwoski outlined his “third way” approach in May, and today reiterated his belief that some form of reclassification is necessary to put the FCC on a “solid legal foundation” as it moves ahead with its national broadband plan.

And net neutrality?

Left unsaid at today’s meeting was the controversial issue at the root of the Comcast case: net neutrality. Though net neutrality wasn’t included in the broadband plan, Genachowski has already initiated a process to enact open Internet rules.

The two Republican commissioners, Robert McDowell and Meredith Baker, dissented strongly at today’s meeting, arguing that any trappings of regulation would infuse service providers with uncertainty about what practices are allowable under the FCC’s framework and might retard investment in their networks.

McDowell warned against creating a “mother-may-I?” dynamic that would imbue ISPs with the concern that they would need to proactively secure approval from the FCC before deploying any new network technology.

Baker expressed “concern that the outcome of this proceeding is prejudged,” a charge Genachowski flatly denied in a press conference following the meeting.

“There’s no point in having a notice-and-comment process unless people bring an open mind to it,” he said. “I think keeping an open mind is essential.”

The notice of inquiry, set to be made public later today, will also ask for comments on alternative approaches.

Opponents of the FCC’s plan to reclassify broadband have argued that the uncertainty that sprang from the Comcast case should properly be resolved in Congress.

A majority of senators and representatives have attached their names to letters opposing the chairman’s third way proposal, though the Democratic chairmen of the relevant committees and subcommittees in the House and Senate have supported the move.

“The FCC and congressional processes are complimentary,” Genachowski said this morning.

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

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