FCC Chairman Julius Genachowski confirmed
Wednesday that the network neutrality order he is circulating for a Dec. 21
vote is based in existing Title I authority.
"The proposal is grounded in a variety of
provisions of the communications laws, but would not reclassify broadband as a
Title II telecommunications service," he said in a brief speech on the
order. "I am satisfied that we have a sound legal basis for this
The chairman was less sure last spring, when he
pitched a "third way" approach of reclassifying broadband access
under some Title II regs, suggesting that was necessary because a defense
of net neutrality under Title I was likely to fail in the courts, but senior
FCC officials speaking on background said they have had time to reflect since
then, and feel they have solid legal footing drawing authority from various
sections of the Communications Act under the broad mandate of protecting an
The chairman also confirmed that the proposal to
expand and codify network neutrality guidelines would apply only transparency
and non-blocking provisions to mobile broadband.
"The proposal takes important but measured
steps in this area -- including transparency and a basic no blocking
rule," he said. "Under the framework, the FCC would closely monitor
the development of the mobile broadband market and be prepared to step in to
further address anti-competitive or anti-consumer conduct as appropriate."
The chairman also said "the proposed
framework also recognizes that broadband providers must have the ability and
investment incentives to build out and run their networks." That includes
reasonable network management, as well as usage-based billing, according to
senior FCC officials.
The chairman did not mention usage-based pricing
in his speech, but the officials said there was a level of comfort with that
approach that was consistent with a level playing field, so long as there was
transparency and consumers were well informed. They pointed out that there is
already usage-based billing---the iPad for example--and that the order
simply clarifies the level of comfort with that approach, without the FCC
trying to pick winners or losers in the marketplace.
To read the chairman's speech in full, go to http://www.openinternet.gov/speech-remarks-on-preserving-internet-freedom-and-openness.html.