FCC chair prefers to keep framework for broadband unchanged: sources
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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.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."
May 2, 2010; 8:42 AM ET
Categories: AT&T , Comcast , FCC , Net Neutrality , Verizon , comcast
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