FCC Unveils Details On Reclassification Plans – Genachowski, agency’s top lawyer highlight ‘third way’

I guess this is good news if you’re a broadband consumer, but not-so-good news if you’re a broadband provider …


As noted yesterday, the FCC has decided to take a “third approach” to regulating broadband carriers, partially classifying them as “common carriers” under Title 2 of the Communications Act. The agency spent last night and this morning briefing carriers, Wall Street analysts and politicians on their plans. Under this partial Title 2 classification, ISPs won’t be forced to open their networks to competitors (something that would be required were they fully classified as common carriers).

FCC boss Julius Genachowski issued a statement (pdf) this morning with more detail — as did FCC General Counsel Austin Schlick (we’ve got a .doc copy of his statement here for those interested). According to Genachowski, the goal with this move is “to restore the broadly supported status quo consensus” that existed prior to the FCC’s court loss to Comcast over throttling upstream user traffic. Specifically, the FCC wants to:

•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; The entire Communications act is here (pdf).

•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.

Again, this move is going to be debated by policy wonks for years — but the gist is that the FCC’s trying to find some kind of middle ground between carriers (who obviously would love an FCC that had no authority of any kind) and consumer advocates (who want a tough regulator on the beat crafting new regulations). This partial reclassification strips all but six of the roughly four dozen Title 2 rules, and won’t involve regulating broadband rates — or requiring that ISPs open their networks to competitors.

There’s still a lot of detail to be hashed out here, and the proposal must be opened to public comment and then receive approval from at least three of the five FCC Commissioners. Genachowski appears to be trying to please everybody — which may or may not work. We’ll post reaction links from impacted parties below.

Comcast has this to say about the decision:

While we are disappointed with the inclination not to lean in favor of Title I regulation, we are prepared to work constructively with the Commission to determine whether there is a “third way” approach that allows the Commission to take limited but effective measures to preserve an open Internet and implement critical features of the National Broadband Plan, but does not cast the kind of regulatory cloud that would chill investment and innovation by ISPs.

Consumer advocacy firm Public Knowledge issued this statement:

We are generally very pleased with the FCC s statement this morning. We have said for months that the right path for the Commission to take would be to examine all the possibilities for the best way to protect consumers and guarantee the expansion of broadband. The method the FCC is expected to propose should be on the table, and we are glad it is. “Having said that, we were not pleased to read that the Commission at the outset is foreclosing the possibility of requiring line sharing. As the Berkman report found, line sharing is a crucial method to ensuring the long-term vibrancy of the broadband market and to providing more choices for consumers.

Free Press says they’re “encouraged” by the plan:

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.

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