Genachowski Has ‘Third Way’ to Address Broadband Authority, FCC Official Says

"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,” said the FCC official. “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 Title II 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."

The heads of the House and Senate Commerce committees support reclassification, they said earlier Wednesday. “In the near term, we want the agency to use all of its existing authority to protect consumers and pursue the broad objectives of the National Broadband Plan,” wrote Rep. Henry Waxman, D-Calif., and Sen. John Rockefeller, D-W.Va. “This includes a change in classification, provided that doing so entails a light regulatory touch, with appropriate use of forbearance authority.” An FCC spokeswoman declined to comment on the letter.

Rockefeller and Waxman would consider overhauling telecom laws, they said: “In the long term, if there is a need to rewrite the law to provide consumers, the Commission, and industry with a new framework for telecommunications policy, we are committed as Committee Chairmen to doing so.” House Communications Subcommittee Chairman Rick Boucher, D-Va., has said he will pursue a revamp of the laws in the next Congress, starting in January (CD March 25 p1).

The court ruling “called into question” the FCC’s authority “to protect broadband consumers and implement important aspects of the National Broadband Plan,” Waxman and Rockefeller said. “Specifically, questions have been raised about the Commission’s authority to move forward with its efforts to promote broadband adoption and deployment in unserved and underserved areas, safeguard consumer privacy, provide consumers with complete and accurate information about broadband service offerings, protect an open Internet, and strengthen public safety communications and cybersecurity."

Waxman’s Republican counterpart condemned the letter. “To ask the FCC to make an end run around both the Communications Act and the D.C. Circuit’s recent decision is not how our government ought to work,” said a spokeswoman for House Commerce Committee Ranking Member Joe Barton, R-Texas. “The truth is, the FCC does not have the authority to regulate management of network congestion on the Internet. If Mr. Waxman believes Congress should reverse the current legislative policy that leaves the Internet unfettered by state or federal regulation, it’s his prerogative to move legislation."

The FCC has never classified broadband Internet access as a telecommunications service, Commissioner Robert McDowell wrote Waxman in a letter forwarded to reporters less than two hours after the Waxman-Rockefeller letter appeared. Until 1996, the agency classified Internet access services as “enhanced services” under Title I and required the underlying local transmission component to be offered on a common-carrier basis, McDowell said. In 1996, Congress codified the “enhanced services” classification as “information services” under Title I, he said. From 2002 to 2007, the FCC issued orders classifying all broadband services as information services, but they had never been considered telecom services before, he said.

Choosing reclassification would upset policies set by President Bill Clinton, Rep. Fred Upton, R-Mich., wrote Genachowski on Tuesday. “The classification of broadband services as information services is rooted in the clear meaning of the Act,” and the FCC under Clinton agreed in a 1998 report, Upton said. The commission warned then about “negative policy consequences” of classifying broadband as a telecom service, he said. “It would be irresponsible to reverse the Clinton administration’s proper classification of broadband services and deregulatory framework, which have been so successful in making broadband available to the overwhelming majority of Americans."

Public interest groups hailed Waxman and Rockefeller. The chairmen are “absolutely correct” that the FCC should consider all options, including reclassification, said Public Knowledge President Gigi Sohn. The letter shows that reclassification isn’t a “radical move,” but rather “has widespread support,” said Free Press President Josh Silver. “Modernizing broadband policy under Title II is the FCC’s only viable option to carry out the goals in the National Broadband Plan, protect the open Internet and safeguard Internet consumers."

Reclassification isn’t a “viable option” for the FCC, countered Free State Foundation President Randolph May. “Apart from the fact that it would be bad policy, classifying Internet services as Title II common carrier services is unlikely to pass muster in the courts. … The FCC ought to suspend its net neutrality rulemaking and get to work with Congress to develop a new statutory framework.”