Org responds to court challege

FCC chairman Julius Genachowski has outlined a plan that would solidify the commission’s ability to regulate broadband providers in the wake of an appellate court decision that cast doubt on the commission’s authority over broadband.

In a six-page statement issued Thursday, Genachowski said that FCC legal eagles have devised a plan that would allow the FCC to classify the transmission component of broadband as a telecommunications service, which would give the commission broad authority to govern the transmission activities of providers. For most of this decade, broadband service has been defined in FCC argot as an “information service,” over which FCC has only limited authority.

Genachowski said the new plan was designed to apply the narrowest possible regulation of the sector. It includes provisions that would explicitly “renounce” other aspects of telecom regulatory policies from applying to broadband providers. That would keep the new policy in line with the general consensus among lawmakers to date “the Internet should remain unregulated and that broadband networks should have only those rules necessary to promote essential goals, such as protecting consumers and fair competition,” Genachowski said.

The commission will soon open up a period of public comment on the plan and other options that the commission may select to clarify the uncertainty raised in the decision last month by the U.S. Court of Appeals for the D.C. Circuit. That decision pointed to the FCC’s recent history of classifying broadband as an information service and challenged the commission’s authority to set policy in the case involving complaints from Comcast Corp. subscribers about the cable giant deliberately slowing broadband traffic to certain websites.

Genachowski acknowledged Thursday that the decision left the FCC in an “untenable” position as it embarks on an ambitious policy agenda to establish net neutrality as the law of the land for Internet service providers and as it seeks to implement the National Broadband Plan to expand availability and volume of high-speed Internet services.

“Consumers do need basic protection against anticompetitive or otherwise unreasonable conduct by companies providing the broadband access service (e.g., DSL, cable modem, or fiber) to which consumers subscribe for access to the Internet,” Genachowski said. “It is widely accepted that the FCC needs backstop authority to prevent these companies from restricting lawful innovation or speech, or engaging in unfair practices, as well as the ability to develop policies aimed at connecting all Americans to broadband, including in rural areas.

“FCC policies should not include regulating Internet content, constraining reasonable network management practices of broadband providers, or stifling new business models or managed services that are pro-consumer and foster innovation and competition. FCC policies should also recognize and accommodate differences between management of wired networks and wireless networks, including the unique congestion issues posed by spectrum-based communications. The Internet has flourished and must continue to flourish because of innovation and investment throughout the broadband ecosystem: at the core of the network, at its edge, and in the cloud,” he said.

Comcast said in a statement it was “disappointed” with the proposal to extend some telecom regulatory provisions to broadband, but the company pledged to work with the commission during the comment period on the proposal. Comcast, of course, is treading lightly where FCC matters are concerned because it is awaiting the FCC’s approval of its merger with NBC Universal.

“We continue to believe that the existing classification of broadband as an information service gives the commission sufficient authority to implement both key goals of the National Broadband Plan and reasonable rules to preserve an open Internet,” said Sena Fitzmaurice, vp of government communications for Comcast. “We also appreciate the Chairman’s desire to take extremes off the table and to try to develop a path to providing ISPs and others in the Internet ecosystem with clear rules of the road about what consumers expect of them, including the Commission’s need to have authority to address complaints should any arise, while avoiding the elements of Title II that are destructive to our business.”

GOP House leader John Boehner (R-Ohio) was hardly restrained in his response to the proposal, calling it a “job-killing big government scheme” and an “unnecessary federal government power grab.”

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