The FCC voted 3-to-2 to open a new proceeding to identify the legal approach it should follow in regulating broadband. The Notice of Inquiry seeks public input to the challenge created by the Comcast court case. Options include pursuing a Title I regulatory path, a full Title II path, and a middle-ground solution — the Third Way approach proposed by FCC Chairman Julius Genachowski.
Specifically, the Notice of Inquiry asks the public to consider:
- Whether the Commission’s “information service” classification of broadband Internet service
remains legally sound and adequate to support effective performance of the Commission’s
responsibilities; - The legal and practical consequences of classifying broadband Internet connectivity as a
“telecommunications service” to which all the requirements of Title II of the Communications
Act would apply; and - A “third way” under which the Commission would reaffirm that Internet content and applications
remain generally unregulated under Title I of the Communications Act; identify the Internet
connectivity service that is offered as part of wired broadband Internet service as a
telecommunications service; and forbear under Section 10 of the Act from applying all provisions
of Title II other than the small number that are needed to implement fundamental universal
service, competition and market entry, and consumer protection policies.
The Notice also seeks comment on the appropriate classification of terrestrial wireless and satellite
broadband Internet services, as well other issues.
FCC Chairman Julius Genachowski stated “While the term ‘Third Way’ may be new to this debate, the model on which it is based is familiar. The Third Way is modeled on the highly successful deregulatory approach that the FCC has
2 used for almost 20 years for mobile voice services: application of a small number of Title II provisions,
with broad and reliable forbearance from all other provisions.”
In rebuttal, FCC Commissioner Robert McDowell state: “I disagree with the premise of this proceeding. Not only is the idea of classifying broadband Internet access as common carriage under Title II unnecessary, already it
has caused harm in the marketplace. As a threshold matter, classifying broadband as a Title II service is not necessary to implement the recommendations of the National Broadband Plan. The Comcast decision certainly does not affect our ability to reallocate spectrum, one of the central pillars of the Plan. Nor does the decision undermine our authority to reform our Universal Service program, the other major component of the Plan.”http://www.fcc.gov
