The FCC is moving forward with a public inquiry on how it should handle regulation of broadband service providers.
In a vote Thursday, split 3-2 along party lines, the commish decided to launch a notice of inquiry on broadband regulation, and it is seeking public comment on three options for redefining its regulatory framework for broadband service. The inquiry was prompted by the federal court decision in April that raised doubts about the FCC’s legal standing for many of the regulatory initiatives it is pushing in its National Broadband Plan (Daily Variety, April 7).
With Thursday’s notice, public comments are due by July 15, replies to those comments by Aug. 12.
The broadband plan and the push to cement Net neutrality as the law of the land together form the centerpiece of FCC chairman Julius Genachowski’s agenda. He has sounded the alarm about a looming crisis of supply as more consumers use broadband-hungry mobile and wireless devices. The National Broadband Plan proposes an overhaul of the high-speed highway that involves TV stations returning some of their broadcast spectrum to the commission for auction to broadband providers — but the proposal has raised the ire of station owners.
The Comcast decision, which involved the cable giant’s challenge of the FCC’s authority to govern Comcast’s ability to block or slow Internet traffic to selected online sites, threw a wrench in the National Broadband Plan agenda by forcing the FCC to revisit its legal and regulatory rationale for overseeing any aspect of the broadband biz.
The question the commission faces is how to categorize broadband service. If the commission decides broadband is an information service, or a Title I service, then under the FCC’s charter it has very limited power to govern the broadband market. If it designatesit a telecommunication service, or a Title II service, it has much broader authority to police service offerings, pricing and other aspects.
The FCC had been treating broadband as a Title I service, but the Comcast decision cast doubt on the commission’s authority to act as it has in recent years under that framework.
Genachowski last month proposed what he dubbed a “third way” option that combines a bit of Title I and Title II in a way that is narrowly tailored to focus on quality control and consumer-protection issues specific to broadband.
“My core focus is on achieving vital national broadband goals to spur investment, innovation and our global competitiveness,” Genachowski said in a statement. “In order to do that, we must solve the problem the Comcast case created.”
The third-way option includes a commitment to renounce the commission’s ability to invoke some of the Title II regulatory authority as it pertains to broadband, but it has still raised hackles among the Republican commissioners and some in Congress.
Commissioner Meredith Attwell Baker was critical of Genachowski for endorsing the third-way option when he introduced it last month (Daily Variety, May 7). She also questioned the need for the commission to react to the court ruling on Comcast, as well as the need for the ambitious overhaul outlined in the National Broadband Plan.
“This is the rare case where opening a proceeding creates so much regulatory uncertainty that it harms incentives for investment in broadband infrastructure and makes providers and investors alike think twice about moving forward with network investments under this dark regulatory cloud,” Baker said in a statement Thursday.
Commissioner Robert McDowell issued a lengthy statement citing several precedents from the Clinton era, when the FCC opted for the lightest-possible regulatory approach to the Internet and new media.
Genachowski’s effort is opposed by a majority of Republicans on Capitol Hill; 75 House Democrats also have come out against his plan.
Comcast said Thursday it was encouraged by Genachowski’s promise to initiate a review and consider all options before moving forward on broadband regulation. “While we remain concerned about unjustified regulation, we are encouraged that the careful balancing the chairman promised in his public statements since first announcing a ‘Third Way’ has led to a rational next step as all stakeholders continue to work together to keep the Internet ecosystem growing and open,” said Comcast exec veep David Cohen.