Intellectual Property Law

Today’s news

By Susan Crawford

Amy Schatz article here.

The FCC is carefully moving towards a “third way” approach to regulation of high-speed Internet access.  Complete deregulation of this essential input no longer makes sense; heavy-handed regulation doesn’t either; the FCC plans to forbear from rate regulation but ensure that the transmission portion — but not Internet applications and content — is subject to basic rules of the road.  They still have a lot of work to do to develop the factual record that will support regulatory reclassification of transmission services, but courts will likely defer to their classification if they do their job right.  I have every expectation that they will.

update: here’s the FCC’s statement

?Tomorrow, FCC Chairman Julius Genachowski will announce a path
forward for the Commission to address serious legal issues raised by
the Comcast v. FCC case.

?The Chairman will seek to restore the status quo as it existed prior
to the court decision in order to fulfill the previously stated agenda
of extending broadband to all Americans, protecting consumers,
ensuring fair competition, and preserving a free and open Internet.

?The Chairman will outline a ?third way? approach between a weak Title
I and a needlessly burdensome Title II approach.  It would 1) apply to
broadband transmission service only the small handful of provisions
that, prior to the Comcast decision, were widely believed to be within
the Commission?s purview, and 2) would have broad up-front forbearance
and meaningful boundaries to guard against regulatory overreach.?

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Under existing law the Commission may, and should, find that transmission of Internet communications is a common carrier service if the service is offered generally to the public.  This potential change of classification is an unremarkable, and long-overdue, step to ensure a level playing field.  In 2001, Powell said that high-speed Internet access was like a Mercedes - now we know it is a basic input to commerce and job-creation in this country.  The facts on the ground have clearly changed and the Commission is not barred from discovering this.

Full post as published by Susan Crawford Blog on May 05, 2010 (boomark / email).