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FCC opens broadband proceedings to determine legal approach to regulation

By Sarah Miley

[JURIST] The Federal Communications Commission (FCC) [official website] on Thursday opened a new proceeding [press release, PDF] to identify the legal approach that will best support its efforts to develop universal access to "high quality" Internet broadband services. The FCC was forced to revisit its method of broadband regulation under its National Broadband Plan [official website; materials] after the DC Circuit Court [official website] ruled in Comcast v. FCC [opinion, PDF] that the commission lacks authority to require broadband providers to treat all Internet traffic equally. The FCC commissioners have remained divided on the best legal framework for broadband access after the Comcast decision and have released a notice of inquiry (NOI) asking for public commentary on three potential approaches. Two possible methods of subjecting broadband to FCC regulation would be to either classify broadband transmissions as an information service under Title I of the Communications Act of 1934 [text, PDF], or as a telecommunications service under Title II. FCC Chairman Julius Genachowski [official profile], however, did not feel that Title I gave the commission enough authority, while Title II put too much regulation on Internet service providers. Genachowski's proposed "third way" [official website] would carve out the connectivity aspect of broadband and classify that as a telecommunications service, but would refrain from applying most Title II requirements to other broadband components. The NOI was passed on a 3-2 vote with Commissioners Meredith Baker and Robert McDowell [official profiles] dissenting. McDowell held that the FCC does not have the authority to reclassify and should be determined by Congress. Comments from the public are due on July 15 and reply comments are due on August 12.

The FCC's "third way" approach to broadband regulation was announced last month after the DC Circuit struck down [JURIST reports] a key part of the FCC National Broadband Plan, which allowed the commission to regulate broadband Internet access. The appeal was brought by cable giant Comcast [official website] to review whether the FCC has the authority to enforce the plan's newly-developed "net neutrality" [backgrounder; JURIST news archive] regulations. The concept of net neutrality, supported unanimously by the FCC commissioners, is to allow for the open flow of information over the Internet, regardless of the amount of revenue generated by the information. The FCC sent the plan [JURIST report] to Congress for approval in March, seeking approval to enact regulations to update the communications infrastructure in the US and make broadband service available to millions more Americans. Telecommunications companies Verizon, AT&T [corporate websites], and Comcast argue that net neutrality would inhibit their ability to effectively manage Internet traffic.

Full post as published by JURIST - The Paper Chase on June 18, 2010 (boomark / email).