FCC Backs Away from Cliff, Charts New Course for Broadband Policy

Last month, a court case brought by Comcast revoked the authority of the Federal Communications Commission to regulate Internet service providers. This decision placed President Obama’s key technology priorities -- like bringing fast, affordable, neutral Internet into every home -- on the edge of a precipice. This Thursday, the FCC took a crucial first step toward putting those policies back on solid legal footing. Chairman Julius Genachowski proposed a new regulatory framework for broadband Internet access service — one that reverses the critical policy failures of the Bush-era FCC which left consumers unprotected and led to a rapid decline in America’s standing as a broadband leader. But while the Commission is certainly on the right track, much hard work remains ahead. Here’s a more detailed look at where we stand:

What happened today: Chairman Genachowski announced his intent to classify the “transport component” of broadband Internet access service as a “telecommunications service.” This means that the physical networks that connect users to the Internet will be subject to a light regulatory oversight to protect consumers and promote competition and deployment. This move would bring the FCC’s regulatory framework into harmony with the history of communications policy in this country and restore legal consistency with the last major revision of our communications law, which was passed in 1996. [The Bush FCC had broken with this legal tradition and created an entirely new regulatory framework which the Courts essentially struck down last month.] The FCC recognized that certain basic obligations ought to apply to the owners of broadband networks, like Comcast or Verizon, because those networks form critical infrastructure for our country, as essential as roads, electric service, or access to water. Today’s announcement proposes to base the FCC’s broadband policy on those time-tested principles, allowing the Commission to move forward with its efforts to protect consumers, preserve the open Internet and bring broadband to all Americans.

What lies ahead: While classification debates may raise temperatures inside Washington, most Americans care about getting to the right outcomes — and getting to them quickly. Ensuring that this regulatory shift sets the groundwork for good policymaking will require courage in the coming weeks, and the incumbent carriers will be ferocious in their opposition to proposals that impose even minimal government oversight. Here are some things to watch for:

1. Look out for a “mad rush to forbearance.”
The Chairman has emphasized he intends to use the Commission’s forbearance authority to apply only six key provisions of Title II of the Communications Act to broadband providers. Everything else – he plans to forbear from. He will keep rules that relate to reasonable practices and terms of service and those that promote access to broadband for rural, low-income and disabled Americans. While these are obviously critical public-interest safeguards, fixating on a deregulatory approach isn’t a good policy unto itself. The question we should be asking, to paraphrase President Obama, is not whether there is too much regulation, or too little, but whether it works. During the seventeen years since Congress passed the 1996 Act, forbearance has been, in the words of the FCC’s general counsel, a “one-way ratchet”; thus, this proceeding provides the Commission’s first, best, and potentially only chance to get this new framework right. The Commission’s approach may preemptively take worthwhile policies off the table, including (1) a basic requirement for broadband network providers to interconnect and (2) any proposals to bring competition to the market for residential broadband, thereby disciplining prices so that Americans may have access to the kind of affordable, ubiquitous, fast broadband that many of our international counterparts enjoy.

2. Be wary of unsupported exemptions. The Commission indicated that it may consider treating wireless broadband service differently from other forms of broadband service. This wouldn’t make any sense. We can debate whether wireless broadband service is a true competitor to cable and DSL broadband service (many think it isn’t), but the Commission’s own National Broadband Plan suggests that wireless can, and someday should, be a meaningful competitor to the cable/telco duopoly. For that to be true, wireless, cable and telephone broadband service should be placed on the same regulatory footing. Many of the problems in contemporary communications law stem from the fact that different laws apply to different technologies that deliver exactly the same service. This modernized framework should recognize the critical importance of technological neutrality and attempt to be suitable for the future as well as the present, applying the same rules to the same kind of service regardless of how it is delivered.

3. Keep an eye on the clock. Moving to a Title II framework will put the Commission’s broadband policy on stable legal footing. But now time is of the essence. In the words of Commissioner Copps, “The quicker we can bring some sense of surety and stability to the present confusion emanating from the Comcast court decision, the better off consumers — and industry, too — will be.” This regulatory fix is the necessary first step toward enacting good policy, and the sooner the Commission finishes the task, the sooner it can get on to its real job of preserving the open Internet for speech, commerce, innovation and creativity, and bringing broadband to all Americans. Lingering over these arcane regulatory debates doesn’t serve anyone.

We’re encouraged by the FCC’s decision to start on a path to protect the consumers, entrepreneurs, artists, citizens and businesses that rely on our broadband communications networks every day as a platform for speech, commerce, innovation, education and creativity. But our efforts to make sustainable, sensible broadband policy have just begun anew.

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