ISPs Land Hard on FCC for Broadband Move

Internet service providers, their trade associations and other Washington supporters wasted no time in lashing out at the Federal Communications Commission’s decision this week to begin the process of reclassifying broadband as a telecommunications service, a move regulators said was necessary to clarify the commission’s oversight authority in the Internet services sector.

Perhaps no one put it more bluntly than Verizon Executive Vice President Tom Tauke, a former congressman who has been lobbying Congress to rewrite telecommunications law to conform to modern broadband service.

“Reclassifying high-speed broadband Internet service as a telecom service is a terrible idea,” Tauke said in a statement.

“Rather than attempting to make the new world of broadband fit into the regulatory scheme of the old telephone world, the FCC should acknowledge that this is an issue Congress should address,” he added.

FCC Chairman Julius Genachowski announced plans to begin the reclassification process last month, and did so only in response to a landmark court ruling that voided the commission’s prior legal theory supporting its work in the broadband sector.

In April, a federal appeals court struck down an order the commission had issued punishing Comcast for secretly blocking traffic on its data network. In court, the FCC’s top lawyer had defended the order, arguing that the commission was acting within the bounds of its ancillary, or implied, authority under the Communications Act.

By that reasoning, broadband, currently designated as a so-called Title I information service, would still fall under the FCC’s regulatory purview. The court disagreed.

By vacating the FCC’s order in the Comcast case, the court effectively undercut the commission’s authority to enact a large portion of its broadband agenda, Genachowski argued.

So yesterday, despite strident dissents from the two Republican commissioners, the three Democrats carried the day and approved a notice of inquiry calling for comments on a proposal to reclassify broadband as a Title II telecommunications service, which, under communications law, would give the FCC much clearer authority to proceed with the recommendations in its national broadband plan, as well as the net neutrality proposal Genachowski initiated in October.

Judging from the flurry of statements, comments and blog postings that greeted yesterday’s move — not to mention the bloated records amassed in every controversial telecom proceeding the FCC has initiated in recent years — the commission is likely to get an earful.

Jim Cicconi, AT&T’s top lobbyist, called the decision “troubling and, in many respects, unsettling,” warning that the threat of additional regulation will curtail investment and lead to job loss.

Genachowski has described his approach to reclassification as a “third way” that seeks a middle-ground between imposing on ISPs the full-blown regulation born from monopoly-era phone service and the current regime, where the commission has at best tenuous authority after the court ruling.

Comcast, the company at the root of the imbroglio, was a bit more measured in its reaction, praising the commission for asking for comments and legal opinions on all three scenarios, but warned about the adverse effects of a move to Title II.

“While we remain concerned about unjustified regulation, we are encouraged that the careful balancing the chairman promised in his public statements since first announcing a ‘third way’ has led to a rational next step as all stakeholders continue to work together to keep the Internet ecosystem growing and open,” Comcast Executive Vice President David Cohen said in a statement.

Some observers have whispered that the genial tone of many of Comcast’s public comments regarding FCC activities could stem from the company’s efforts to secure the commission’s approval for its proposed takeover of NBC Universal.

A consistent thread of the opposition held that the FCC’s work in the broadband sector is statutory issue and that any reshuffling of the commission’s authority falls to Congress.

More than half the members of Congress signed their names to letters echoing that sentiment that were delivered to Genachowski opposing his reclassification proceeding.

But the Democratic leaders of the House and Senate commerce committees support the reclassification move, and have announced plans to begin work overhauling the Communications Act, which received its last major revision in 1996.

At yesterday’s meeting, Genachowski said that he welcomed the proposal in Congress to clarify the law, and said he views the efforts of Congress and the commission in the area as complimentary.

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

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