FCC Votes 3-2 To Launch Broadband Transmission Classification Inquiry

As expected, agency's Democratic majority moves to launch 'third way' efforts
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 The FCC's Democratic majority Thursday voted 3 to 2 to launch its effort to clarify the FCC's authority to regulate broadband transmissions by classifying them under a handful of Title II common carrier regs and forbear (not apply) the rest, the so-called "third way" approach proposed by chairman Julius Genachowski and general counsel Austin Schlick.
The two Republican commissioners respectfully, but strongly, dissented.

That vote came in the form of a notice of inquiry into that and other possible responses to a D.C. Federal Appeals Court's April 6 decision that the commission did not sufficiently establish its ancillary authority over Comcast's broadband network management practices, and by extension everybody else's network management practices.

The comment deadline for the inquiry is July 15, with reply comments due Aug. 12.

The inquiry did not declare a next step once that comment is collected, but in a press conference afterward, Schlick said the precedent -- when the FCC classified broadband under Title I in 2002 -- was simply to issue a declaritory ruling, which would require no further commission vote.

That is one of the reasons why both Republicans needed to register their opposition to the third way now.

Genachowski again called the third way approach a compromise between doing nothing and overregulation via applying all of Title II regs, including unbundling and price controls, on Internet transmissions, though he also said he was open to other input.

"My focus is not an any particular legal mechanism," he said, but that the FCC "simply restore the status quo and have a workable, light-touch framework for broadband access."

In fact, the inquiry also solicits comment on options other than the three ways offered up.

ISPs, including phone and cable operators, have argued that Title II reclassification is imposing legacy phone-style regs that could chill investment and innovation, points made by Republican commissioners Robert McDowell and Meredith Attwell Baker.

The chairman referred to the third way on several occasions as a "possible" or "preferable" solution, rather than a foregone conculsion. but while he said he was open to considering whatever framework would insure innovation, opennes, and competition, he did suggest an obvious preference.

He said he recognized that there were pros and cons to all three ways, he said. "I remain open-minded."

But he did suggest in some instructions to stakeholders that his mind was disposed toward his own proposal. "I ask only this of all participants in this discussion. Let's not pretend that the problems with the state of broadband in America don't exist [his Republican opponents have focused on what they see as a glass that is 80%-90% full]. Let's not pretend that the risk of excessive regulation is not real, or at the other extreme that the absence of basic protections for competition and consumers is acceptable."

He said he thinks the full-boat Title II way is not acceptable either, but left its threat in the minds of his listeners.
Commissioner Baker had said that she was concerned that the chairman's public support for the third way meant he had prejudged the issue. His care in using conditional language about the proposal during the meeting was meant to suggest otherwise, as were his several statements that he was open to suggestions and focused on the goal of open, robust, competitive broadband however that could be legally sustainted. It was a point he reiterated at a post-meeting press conference when Baker's concern was highlighted.

There were visitors from Pakistan at the meeting, and McDowell wanted to make sure they understood that most of the FCC's decisions (90%) are bipartisan and unanimous. But this issue marks one of the 10 times when the divergence in views was strong. "I fundamentally disagree with the premise that has been offered to support this item," he said, arguing that the Title II plan was not already unnecessary but had caused harm to the marketplace already.

McDowell and Baker both maintain that the move, and its threat,could chill investment and may wind up hurting broadband deployment, not helping it. McDowell said whatever clarification the FCC needs for its broadband authority needs to come from Congress.

Genachowski said that he fully supported an effort by top Democrats to revise the communications act and provide a solid broadband regulatory framework, but that should be a complementary track to the FCC's NOI and that it would not serve either the public interest or the future of broadband for the FCC to do nothing.
Democratic Commissioner Michael Copps said he would have preferred an even swifter lassification of broadband under Title II than could be the case with the NOI, and dismissed suggestions that doing so would be regulating the Internet. Instead he said, it would be insuring that people could have unimpeded access to the Internet via network on-ramps.

Copps said he was not comfortable leaving the future of the countries broadband hopes and dreams in the hands of industry. "Permitting this chaotic stand-off to persist can only leave consumers, innovators and even broadband companies themselves on an uncertain and perilous path," he said.

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