FCC Puts Title II NOI on June Agenda

Will ask for comment on proposed "third way" path to clarifying FCC's broadband regulatory authority in wake of BitTorrent decision

By John Eggerton -- Broadcasting & Cable, 5/27/2010 5:22:22 PM

As expected, FCC Chairman Julius Genachowski announced May 27 that a notice of inquiry on the FCC's proposal to reclassify broadband as a Title II service will be on the agenda for the FCC's June meeting. The notice will ask for comment on the chairman's proposed "third way" path to clarifying the FCC's broadband regulatory authority in the wake of the BitTorrent decision, which would be to classify only the transmission element as a Title II common carrier service, and then only applying a handful of those regulations while forbearing (i.e., not applying) the rest. Rather than issuing a separate notice of proposed forbearance, it will be rolled into the NOI, according to a source. The NOI will also ask for input on the two extremes between which the chairman has said his approach navigates a middle ground -- that is, "[w]hether the Commission's 'information service' classification of broadband Internet service remains legally sound and adequate to support effective performance of the Commission's responsibilities," or "The legal and practical consequences of classifying broadband Internet connectivity as a 'telecommunications service' to which all the requirements of Title II of the Communications Act would apply." A federal court has ruled the first to be on shaky ground at best, while the chairman and his general counsel have said they do not want to go the other extreme of applying all the mandatory access and interconnection regs to broadband. Republican and more than 70 Democrats have expressed reservations about the "third way," suggesting a fourth way would be for the FCC to back off and let Congress clarify what broadband regulatory powers it meant for the FCC to have. The notice will also seek comment on classification for terrestrial wireless and satellite broadband delivery of Internet. Those two are broken out because some have argued that Title III wireless regs already covers those services.
The FCC's "third way" approach got a shout-out from a pair of legislators who have long pushed for network neutrality.

In a letter to Genachowski that was circulated soon after the announcement of the NOI, Reps. Ed Markey (D-Mass.) and Ann Eshoo (D-Calif.), praised the chairman's proposal as a "tailored, commmonsense" path forward" and one that would allow the FCC to continue its open Internet proceeding.

Markey and Eshoo are co-sponsors of the Internet Freedom Preservation Act, which would legislate a network neutrality/nondiscrimination regime.