Title II Lite: Genachowski Says BitTorrent Decision Has Created Untenable Situation

FCC to start laying legal foundation for broadband regulation
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FCC Chairman Julius Genachowski
said Thursday (May 6) the FCC would start laying the legal foundation for
broadband regulation by seeking comment on his so-called "third way"
framework, saying he was still open to "all ideas."

He said the current regulatory
uncertainty was "untenable" and proposed the following, what he
called "narrowly tailored" approach that would return the broadband
regulatory regime to the "status quo":

"1. Recognize the
transmission component of broadband access service-and only this component-as a
telecommunications service;

2. Apply only a handful of
provisions of Title II (Sections 201, 202, 208, 222, 254, and 255) that, prior
to the Comcast decision, were widely believed to be within the Commission's
purview for broadband;

3. Simultaneously renounce-that
is, forbear from-application of the many sections of the Communications Act
that are unnecessary and inappropriate for broadband access service; and
4. Put in place up-front forbearance and meaningful boundaries to guard against
regulatory overreach.

He said he did not want
"heavy-handed, prescriptive regulation," but said a
"do-nothing" approach could leave "consumers unprotected and
competition un-promoted."

Genachowski, in a statement
released Thursday, said that the commission needs backstop authority to prevent
Internet access providers from restricting access to "lawful innovation or
speech," or engaging in unfair practices. He also said it was necessary
for implementing the national broadband plan of connecting everyone to the
Internet.

Genachowski said the court
decision in BitTorrent had created a serious problem that needed to be solved,
and stemmed from the "controversial" decisions of the FCC's
classification of broadband Internet access as an information service.
"This undermining of settled understandings about the government's role in
safeguarding our communications networks is untenable."

Saying he had serious reservations
about either continuing to try to assert ancillary authority under Title I and
"indirectly" drawing on Title II provisions, or reclassifying it as a
Title II service, with the "dozens" of new regulations that would
result. He said General Counsel Austin Schlick had advised him that the Title I
approach would likely fail again in court. The chairman said that while Title
II would clarify the legal foundation, it would also result in the kind of
Internet regulation that failed to reflect bipartisan consensus that the net
should remain unregulated.

Net neutrality fans were
supportive, with caveats.

Free Press, which has been pushing
for Title II reclassification, applauded the effort, but was concerned that the
chairman might have steered that middle course too far away from some important
consumer protections.

"By putting the FCC's
regulatory framework back in harmony with Congressional intent, Chairman
Genachowski is reversing one of the worst deregulatory mistakes of the past decade,"
said Free Press Research Director Derek Turner. "This is a step in the
right direction that rejects the special interests of giant network owners. But
he should be cautious about throwing out rules that would promote competition
and affordability.  The chairman's plan appears to preemptively abandon
important provisions of the law that serve consumers."

Public Knowledge President Gigi B.
Sohn echoed that sentiment. "We are generally very pleased with the FCC's statement
this morning...The method the FCC is expected to propose should be on the
table, and we are glad it is. Having said that, we were not pleased to read
that the commission at the outset is foreclosing the possibility of requiring
line sharing."

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