Today, FCC Chairman Julius Genachowski issued a long statement proposing the administration’s way forward after the recent court ruling that shot down the FCC’s power to protect the Internet from big phone and cable companies. In it, Genachowski comes out in favor of reclassifying broadband services as Title II Communications Services, the only logical way forward to protect the Internet.
As General Counsel Austin Schlick has explained more fully in his statement today, under this narrow and tailored approach, the Commission would:
- Recognize the transmission component of broadband access service—and only this component—as a telecommunications service;
- Apply only a handful of provisions of Title II (Sections 201, 202, 208, 222, 254, and 255) that, prior to the Comcast decision, were widely believed to be within the Commission’s purview for broadband;
- Simultaneously renounce—that is, forbear from—application of the many sections of the Communications Act that are unnecessary and inappropriate for broadband access service; and
- Put in place up-front forbearance and meaningful boundaries to guard against regulatory overreach.
This reclassification approach puts the FCC on solid legal ground to move forward with protecting net neutrality and rolling out the national broadband plan.
The Telecommunications Act of 1996, which created the Title I and Title II categories, and its predecessor, the Telecommunications Act of 1934, focused its efforts on regulating communications services mainly on phone lines. But the legislators writing the laws left flexibility to account for future communications services like the Internet, which was starting to become a force at the time. The FCC is given the power to classify services under the various Titles, but it also has the power to "forbear" application of regulations within those Titles as it sees fit.
This is the approach the Chairman is taking. The FCC will now write their forbearence rules to exempt broadband from regulations under Title II that don’t make sense for Internet service because they more appropriately apply to older communications mediums like phone lines. Those forebearence rules and the reclassification of broadband as a Title II service will go into effect pretty much simultaneously.
As opposed to trying to protect the Internet under current Title I regulation authority, authority which the court shot down, this approach puts the FCC back on solid legal footing. It can now protect things like net neutrality without being challenged in court every step of the way. And any challenges it does face from the big phone and cable companies will likely be turned down.
Of course, the devil is still in the details. Genechowski is overly careful to tout this approach as a "third way." This framing is worrysome and shows the power the opposition in various forms has. It shows that Republican attacks on net neutrality as a "government takeover of the Internet" are feared by the administration, ridiculous as they are. And it shows that phone and cable companies still have too much power, forcing the Chairman to cloak his policies in centrist language. And finally, it shows the administration’s love for "pragmatic," really centrist language. All of this means we need to be on our guard.
Consumer advocates and proponents of net neutrality have put enormous pressure on the FCC, the Chairman, and the Obama administration in recent months to keep their promises and uphold net neutrality and the national broadband plan. That pressure comes in the face of huge lobbying and astroturf campaigns by the industry and their supporters, arguing to turn over the Internet fully to private companies. The pressure from advocates is clearly working. But the centrist language used today means that pressure needs to be kept up.
FCC Member Michael Copps and Senator Byron Dorgan issued an op-ed today calling for reclassification and vigilence. Techcrunch raises an important point that net neutrality is just the tip of the iceberg – competition in broadband must be fostered as well, something the cable and phone companies want even less. And Free Press urged the FCC to make sure competition and affordability are taken into account:
"By putting the FCC’s regulatory framework back in harmony with congressional intent, Chairman Genachowski is reversing one of the worst deregulatory mistakes of the past decade. This is a step in the right direction that rejects the special interests of giant network owners. But he should be cautious about throwing out rules that would promote competition and affordability. The Chairman’s plan appears to preemptively abandon important provisions of the law that serve consumers.
"The FCC’s own data indicates that we have a duopoly problem today, and a looming cable monopoly problem ahead. The commission should not unnecessarily take away the tools Congress gave the FCC to promote competition and affordability in our advanced communications markets.
“We urge the commission to move speedily because consumers and Internet users are unprotected.”
There is still strong support for making sure the Internet is open and affordable to all, and for keeping it out of the greedy hands of the big phone and cable companies. That pressure is going to be crucial as the FCC develops its regulations under Title II.
Advocates won a big victory today, and the FCC did the right thing and put the Internet on solid legal grounds. The battlefield has been tipped in our favor, but there are still battles to be fought and won before the Internet is the public good it’s supposed to be.