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FCC chair outlines regulatory foundation for broadband providers

The Federal Communications Commission will write some net-neutrality rules after all.

Only days after liberal tech-policy groups had been worrying that the FCC would go wobbly on them, commission Chairman Julius Genachowski outlined a foundation for limited regulation of Internet providers that could stop some of the worst abuses--but would not reshape the market in any fundamental way.


In a statement titled "The Third Way: A Narrowly Tailored Broadband Framework" (PDF), Genachowski advocated putting the basics of online access back under a branch of U.S. telecom law that had governed most Internet providers until 2005.

This is a tactic that telecom wonks call "Title II reclassification," referring to the part of the Communications Act of 1934 (PDF) governing "common carrier" telephone service. Under Genachowski's proposal, the FCC would apply only a small fraction of Title II's rules and exempt, or "forbear," those irrelevant to Internet access.

This way, the commission could stick with its earlier plans to write rules mandating "net neutrality"--the principle that Internet providers should not discriminate for or against particular types of legal online services or sites--without running afoul of an April appeals court ruling that knocked over a more fragile foundation for these rules.

Genachowski's proposal would also allow the FCC to continue with its plans to promote universal access to broadband Internet.

Genachowski's statement describes his approach as a middle ground, but to me it had always seemed the most straightforward way out of the box in which the U.S. Court of Appeals for the D.C. Circuit's ruling had left the FCC.

On the FCC's site, General Counsel Austin Schlick provides a more detailed explanation. In it, he notes the relevant sections of existing law that the FCC would impose on the "transmission component" of Internet access--not your e-mail or search applications, but the underlying connection.

Specifically, providers would have to comply with sections 201 (a ban on "unjust or unreasonable" denials of or charges for service), 202 (prohibiting "unjust or unreasonable" discrimination for or against particular people or places), 208 (the FCC can investigate citizen complaints), 222 (telecom firms must protect their customers' privacy), 254 (the goal of universal service) and 255 requiring access for persons with disabilities).

Dozens of other sections would go by the wayside--including those that the FCC could have cited in requiring broadband providers to open their networks to competing firms.

Because of that, some earlier advocates of action by the FCC are a little disappointed today. Public Knowledge President Gigi Sohn, for example, didn't like seeing the FCC renounce the possibility of "open access" requirements. That and other decisions will probably leave you with the same choice of one or two broadband providers for the near future.

Perhaps for the same reason, I'm not hearing too much of the old sky-is-falling silliness from opponents of net-neutrality regulations. Comcast--which filed the suit that led to last month's ruling after the FCC cited it for interfering with legal file-sharing services--now seems prepared to live with this latest move. Wireless carriers seem a little more nervous, to judge from an e-mailed statement from their CTIA trade assocation--perhaps with good reason, considering their picky and sometimes arbitrary stewardship of mobile-broadband services.

Much like the FCC's limited, carefully crafted National Broadband Plan, Genachowski's proposal looks to be a cautious compromise that sticks to precedent when possible. It would implement an Obama campaign promise, but in a fairly conservative way.

Even so, Genachowski's proposal could do much to promote the progress of new Internet services and applications--investors don't like worrying that their start-ups can be shut down by gatekeeper companies.

And it will restore to the FCC a clear right to investigate and punish Internet providers if they're tempted to abuse their market power. That alone should count as a victory for customers: I'd rather see competition keep companies honest, but when the market fails, having the government serve as a referee is usually the next-best option.

By Rob Pegoraro  |  May 6, 2010; 1:45 PM ET
Categories:  Policy and politics , Telecom  
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In the sake of solving a problem that does not exist (net neutrality) - now those of us in rural areas, can be sure than no rational company would build out competing broadband service (like what Telcos, cable operators, and sattelite operators have been doing for the past 10 years). Thanks JG - hope your friends at Internet start-ups and 'policy groups' can rest well at night - for that many Americans will suffer.

Posted by: jw15 | May 6, 2010 2:27 PM | Report abuse

For folks in rural areas, you chose to live there. If you don't like it, move. Or, sign up for Hughes internet by satellite, or a Wireless Internet Service Provider if available.

Regarding the "Third Way" internet proposal, I commend to you all the statement of Barbara Esbin, Senior Fellow at The Progress & Freedom Foundation:

Posted by: HoosierFavoriteCommenter | May 6, 2010 5:23 PM | Report abuse

All we hear about in the news is how the government fails to referee anything properly. Give an example of something they've refereed properly. How can you say "...having the government serve as a referee is usually the next-best option"??

Posted by: trentgu | May 10, 2010 11:04 PM | Report abuse

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