At Long Last, “Title II Lite” for Broadband

After weeks of speculation and debate, FCC Chairman Julius Genachowski and General Counsel Austin Schlick  announced today that the Commission will move to use its authority under Title II of the Communications Act to lightly regulate broadband Internet access services.  The announcement comes one month to the day after the DC Circuit’s decision in the Comcast case cast widespread doubt on the FCC’s existing authority to implement its proposed Internet neutrality rules, as well as aspects of the National Broadband Plan.  In a statement released late yesterday, CDT welcomed the proposed approach, which appears to recognize the importance of protecting and preserving Internet openness while at the same time carefully limiting the FCC’s authority, thus foreclosing broader regulation of all things Internet.

CDT has long argued against unbridled FCC jurisdiction over the Internet.  Today’s announcements state clearly that “FCC polices should not include regulating Internet content,” and that “the FCC’s role . . . should not involve regulating the Internet itself.”  This is good news.  Instead, Chairman Genachowski proposes narrowly classifying the transmission component of Internet access as a Title II telecommunications service and applying a limited subset of telecommunications regulations to it.  He stresses that forbearing from applying most Title II regulations will provide “meaningful boundaries to guard against regulatory overreach.”

The provisions that would apply to broadband Internet access service include a non-discrimination requirement, privacy protections for consumers’ network information, disability access requirements, and integration into the Universal Service Fund.  While it is unclear how all these provisions will apply to broadband service, it is laudable that the Commission is proposing a light touch rather than suggesting full-scale telecommunications regulation.

Imposing even this subset of Title II regulation on broadband Internet access service will require contentious reconsideration of the Commission’s 2002 Cable Modem Order and subsequent decisions that declined to regulate broadband service as telecommunications.  But as CDT argued in our Internet neutrality reply comments, there are strong arguments that the assumptions and facts underlying those decisions, whatever their original merits, do not hold true today.  Many if not most broadband subscribers currently perceive and use Internet access as a telecommunications service: a connection that gives access to all the information on the Internet, without interference from the broadband provider.  Recognizing this fact will give the FCC a stable—and narrow—path forward to preserve the openness of the Internet and protect the public interest in the 21st-century communications environment.
 

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