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 FCChad not justified its network management decision against Comcast underTitle 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.
