FCC to Adopt "Title II Lite" Approach to Web Regulation

Commission will unveil legal approach to clarify authority to regulate the Internet

By John Eggerton -- Broadcasting & Cable, 5/5/2010 4:41:39 PM

The FCC will unveil on May 6 its legal approach to clarifying its authority to regulate the Internet. A senior FCC official describes it as somewhere between a "weak Title I and overly burdensome Title II" approach.

"The Chairman will seek to restore the status quo as it existed prior to the court decision in order to fulfill the previously stated agenda of extending broadband to all Americans, protecting consumers, ensuring fair competition, and preserving a free and open Internet," said the official.

The status quo had been a Title I "information services" designation for broadband, which meant a light regulatory hand and no access mandates. But a federal court said the FCC had not justified its network management decision against Comcast under Title I, so the FCC went back to the drawing board.

"The Chairman will outline a ‘third way' approach between a weak Title I and a needlessly burdensome Title II approach," the official said, adding that it would "1) apply to broadband transmission service only the small handful of Title II provisions that, prior to the Comcast decision, were widely believed to be within the Commission's purview, and 2) would have broad up-front forbearance and meaningful boundaries to guard against regulatory overreach."

How much broadband service providers will complain about the classificaion depends on how much the FCC forebears, says one veteran industry official, but either way, "they aren't going to like it."

The FCC had no official comment on the details of the proposal.

The move comes in the wake of pressure from the top two Democrats on the House and Senate FCC oversight committees, who sent a letter to FCC Chairman Julius Genachowski Wednesday saying he should consider a Title II regime with forbearance (essentially not applying some of the Title II regs) as one route to clarifying its Internet regulatory authority.

Free Press, which has been pushing for Title II reclassification, was pleased, though with a caveat. "The FCC is sending a clear signal that they are backing away from the cliff," said Free Press President Josh Silver, referring a report earlier in the week that Genachowski was leaning against reclassification. "It appears they are charting a path toward a sensible broadband policy framework that will protect consumers and promote universal access. This is extremely welcome news."

The caveat: "We reserve judgment, however, on whether the FCC has gone far enough to protect consumers with this new proposal."

However, Bruce Mehlman, co-chair of Internet Innovation Alliance, was not heartened. "If the goal is maximizing broadband deployment and adoption under the Broadband Plan, new regulations such as these will not help," he said. "This sounds more like a political solution likely to imperil investment than a policy initiative that tackles actual challenges in the marketplace." IIA members include fiber-maker Corning and AT&T, though AT&T itself was not commenting until it saw specifics, according to a spokesman.

The National Cable & Telecommunications Association had no comment.

How much the broadband service providers will complain depends on how much the FCC forebears, says one veteran industry official, but either way industry is not going to like it.

One key element will be whether one of the things the FCC forbears is the Title II common carrier requirement to open broadband networks to competitors. That is likely to be one of the carve-outs. Not even Free Press was asking for that in its push for some form of Title II classification.