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FCC chair prefers to keep framework for broadband unchanged: sources

Julius Genachowski

Image by jdlasica via Flickr

The chairman of the Federal Communications Commission is leaning toward keeping the current regulatory framework for broadband services in place, after a federal court decision last month showed weaknesses in the agency’s legal status over broadband service providers.

Three sources at the agency said that FCC Chairman Julius Genachowski hasn’t made a final decision on whether the commission would change the legal framework for broadband services – a key question as the FCC attempts to create an open Internet rule and bring broadband services to all Americans.

But in recent discussions, the sources said Genachowski has indicated he is less inclined to define broadband as common carrier service like regular copper wire phone services, which are clearly under the FCC’s oversight. The chairman was concerned that a move to that regime, called Title II, would be overly burdensome on carriers, they said. Yet he was also concerned that the current framework would lead to constant legal challenges to the FCC’s authority every time it attempted to pursue a broadband policy.

The complicated legal debate is one steeped in historical interpretations of the FCC's mission, its mandate by Congress and technological transformation to communications services brought by the Web. At stake is the FCC’s ability to act as the nation’s guardian of Web access providers as the Internet becomes the primary means of communications for the nation. The debate has heated since the D.C. Circuit Court of Appeals said last month that the FCC over-reached when it applied sanctions in 2008 against Comcast for blocking a peer-to-peer application. The FCC has “ancillary” authority over broadband providers such as Comcast, AT&T, and Verizon and must adequately justify actions over those providers.

Genachowski wasn’t chairman of the FCC when it sanctioned Comcast and the company's appeal predates him. In a recent speech, he called the court decision brought by Comcast “unfortunate.” Sources at the FCC said staff in the chairman’s office is in disagreement but there is also a sense of urgency to resolve the issue as Genachowski is scheduled to speak at the annual cable trade industry show by the National Cable & Telecommunications Association (May 11 to May 13).

Specifically, he is exploring a legal push under the current legal framework for broadband, which is under Title I, that would make possible the FCC’s push for a new net neutrality rule and reforms under a national broadband plan, the sources said. That could include a legal push in courts where it would assert that the FCC has the mandate from Congress to deploy broadband to all Americans in a timely manner.

Such legal maneuvering could help it reform an $8 billion annual phone subsidy to include funds for the buildout of broadband networks. The chairman is also considering a move to assert its ability to carry out its net neutrality rule, which is still being deliberated by the five-member commission. Genachowski would do so by stressing that its process has been sound: the FCC's crafting of new rules has drawn full public comment and debate within the commission.

The sources spoke on the condition of anonymity because a final decision hasn’t been made and because of the sensitive nature of the issue. FCC spokeswoman Jen Howard said Saturday that Genachowski hasn’t made a final decision and declined to comment further.

The companies that are most affected by the debate are the network operators such as AT&T, Verizon and Comcast which provide the transportation of Web traffic on their networks. They would be cheered by a decision from the FCC to retain its current regulatory structure that is a murkier statute and would make it more difficult for the agency to impose rules on them. And they warn that reclassification of broadband would hurt their businesses.

"It should come as no surprise . . . that leading financial analysts and technology commentators have questioned this path," the biggest telecommunications and cable trade groups wrote in a letter to Genachowski last week. "Thus it is hard to imagine a regulatory policy more at odds with the commission's goal of encouraging 'private investment and market-driven innovation.' "

But net neutrality supporters -- companies such as Google and Skype and public interest groups -- have called for the agency to shift broadband Internet services more clearly under the agency's authority, saying consumers would be more vulnerable to business decisions that could cut off competition and access to applications on the Web.

In a letter (pdf043010_law_professor_final[1].pdf) to Genachowski last Friday, University of Michigan law professor and former Obama economic adviser Susan Crawford and other communications law professors outlined a legal argument to reclassify broadband. They disagreed with carriers who say the move wouldn't stand legal challenge.

"The FCC now faces a choice, It can abandon the idea of supporting high-speed Internet access . . . and requiring providers of high-speed access to disclose information about their costs and speeds," she wrote with Columbia University professor Tim Wu and University of Nebraska professor Marvin Ammori. "It can move ahead under Title I, attempting to tie its steps more closely to other portions of the Communications Act and face a battle over every proceeding it launches."

Supporters of a move to Title II say that the FCC could strip many of those phone service rules for broadband, making such a move less cumbersome for ISPs.

An official at the agency said that the chairman has been talking to many constituents -- businesses, public interest groups, and legal staff – to help solve the agency’s dilemma. Any changes to the current framework for broadband would first draw public comment and then go before a vote before the five-member commission. Democratic member Michael Copps has said he favors reclassification of broadband to Title II. Democratic member Mignon Clyburn is expected to vote with Genachowski on whatever decision he makes. Republican members Meredith Atwell Baker and Robert McDowell have opposed a move to Title II. McDowell recently said courts would determine such a move "arbitrary and capricious."

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By Cecilia Kang  |  May 2, 2010; 8:42 AM ET
Categories:  AT&T , Comcast , FCC , Net Neutrality , Verizon , comcast  
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Next: Free Press balks as FCC leans toward keeping broadband framework


Uh, it's "copper wire" not "copy wire" that is used for regular phone lines...

Posted by: walker2 | May 2, 2010 9:07 AM | Report abuse

Hmmm. I just tried to post a comment copying some text from an analysis from the Progress and Freedom Foundation, and it was intercepted by the Post blogging software saying it would be held pending approval by the blog host. I have never had an opinion held for approval on this blog before.

Posted by: ObamasGulfResponseIsMuchWorseThanKatrina | May 2, 2010 9:34 AM | Report abuse

The link to Crawford's letter is broken--can you re-post?


Posted by: awnonymous | May 2, 2010 10:58 AM | Report abuse

Net neutrality is what we need, whatever has to be done to accomplish that is what is necessary.

Posted by: mtravali | May 2, 2010 12:46 PM | Report abuse

I think that any attempt of the feds to regulate broadbend would be used to limit "free speech" on the internet. AND THAT IS NOT A THING WHICH IS ACCEPTABLE.

Posted by: barrysal | May 2, 2010 1:15 PM | Report abuse

Net neutraility is where the Libs take over the net because they don't want opposition to their agenda.

Posted by: unreal3 | May 2, 2010 2:28 PM | Report abuse

The internet is a major development in technology. The basic framework for its regulation should be determined by Congress. Major decisions in our government are supposed to be made by representatives of the people not professional bureaucrats.

Posted by: dnjake | May 2, 2010 2:46 PM | Report abuse

Interesting. Google's reporter at the Post, Cecilia Kang, posts a link to a Google Docs document, which requires the viewer to have a Google account to view it, thus forcing readers to sign up with Google (and thereafter be tracked around the Web by Google) if they want to read it. Fortunately, by law, the letter must appear on the FCC's Web site, and the public should be able to view it there without having their computers infected with Google/Doubleclick tracking cookies. But it is not there now, meaning that Ms. Kang must have learned about it directly from Google or one of its lobbyists. This indicates an "inside track" between Google and Ms. Kang.

Ms. Kang also calls Google's captive DC lobbying groups "public interest" groups, and gives the last word to three Google "rent-a-profs" -- professors who all, in one way or another, have lobbied for Google's agenda and/or received benefits as a result of supporting Google's corporate agendas. (Tim Wu, for example, is the Chairman of Google lobbying group Free Press, and Marvin Ammori has served as a lawyer for the same group. Susan Crawford is on the Board of Directors of Public Knowledge, another DC astroturf lobbying group which lobbies for Google. And she owes a recent post within the Obama administration to Google, which was a large campaign contributor.)

Washington Post editors: could we see some unbiased reporting on the issue of Internet regulation? Please?

Posted by: LBrettGlass | May 2, 2010 3:24 PM | Report abuse

Yeah, I don't like Post reporters linking to Google Docs documents in their stories. I tried to access it and first got an ad to sign up for Google Buzz. How did Google know I don't have a Google Buzz account? Kind of creepy.

Posted by: jethro1 | May 2, 2010 3:56 PM | Report abuse


So you would rather that Comcast, ATT, or Verizon have the option to limit your "free speech"? I think you are missing the point of the FCC making sure that these companies don't do that.

Posted by: sasha11 | May 2, 2010 8:26 PM | Report abuse

The link to the letter from the telecom trade groups is also broken. Any chance of fixing it?

Posted by: LOD2 | May 2, 2010 8:49 PM | Report abuse

Oh good grief. The tea-baggers are worried that somehow classifying the Internet as a 'common-carrier' would give liberals an edge? Since when has your phone company giving liberals an edge? How about UPS or FedEx?

Common carrier just means every message gets equal "protection" and is treated the same. No matter to whom or from whom it's sent.

What's so paranoia-making about THAT?

On the other hand, the corporate media that owns the backbone has already shown they want to tweak and throttle-back on sites THEY DON'T LIKE.

Get. A. Clue. Net Neutrality is for EVERYBODY.

Posted by: Zino | May 2, 2010 9:47 PM | Report abuse

ISPs have never censored legal content. On the other hand, Google, which is lobbying for the regulations, has. In fact, it's censored political speech in many countries.

Posted by: LBrettGlass | May 2, 2010 11:56 PM | Report abuse

best news i've read all year!

f jackie.

Posted by: millionea81 | May 3, 2010 3:48 PM | Report abuse

"ISPs have never censored legal content. On the other hand, Google, which is lobbying for the regulations, has. In fact, it's censored political speech in many countries."
ISPs in other countries have blocked all sorts of things. How much censorship has Google done in the US? Comcast has been known to refuse advertising for ISPs on their cable network. Is that not a form of censorship? I could see not doing it on their internet service, but they are looking at buying a network. Could be bad for someone who's political views they disagree with, when it comes to network advertising.

Posted by: rfceo | May 4, 2010 4:39 PM | Report abuse

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