FCC's Genachowski charts way forward on net neutrality

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FCC Chairman Julius Genachowski decided to push ahead with a new legal strategy that will allow the commission to implement net neutrality regulations for wireless and wired networks. This move will likely spark a fierce lobbying campaign and lead to heated debate within the commission itself.

Genachowski said the "third way" forward on net neutrality essentially reclassifies broadband from a Title I information service to a Title II common-carrier service, while at the same time forbearing from, or agreeing not to pursue, many of the regulations that are imposed on Title II services such as telephone systems. This new approach likely will generate months more of public comments before any final decision by the FCC.

The telecommunications world has been waiting for Genachowski's response to a federal appeals court ruling that cast doubt on the legal justification the FCC had been using to exercise its authority over broadband. Genachowski said he directed his staff to "move forward with broadband initiatives that empower consumers and enhance economic growth, while also avoiding regulatory overreach." The move is likely to be applauded by consumer advocacy groups that had been pressing the FCC to reclassify broadband, and antagonize the wireless industry and large telcos such as AT&T (NYSE:T) and Verizon (NYSE:VZ).

The approach outlined by Genachowski calls for the transmission component of broadband, and only that component, to be recognized as a telecommunications service. The commission will then look to apply only a handful of Title II provisions while ignoring parts that are not applicable to broadband, and "put in place up-front forbearance and meaningful boundaries to guard against regulatory overreach."

In an attempt to diffuse critics, Genachowski said he has consistently pushed for policies that do not constrain reasonable network management and that recognize and accommodate differences "between management of wired networks and wireless networks, including the unique congestion issues posed by spectrum-based communications." 

Genachowski said the approach is narrow and would resolve regulatory uncertainty. In a statement, he also noted that this approach has already been used--for wireless networks. "In its approach to wireless communications, Congress mandated that the FCC subject wireless communications to the same Title II provisions generally applicable to telecommunications services while also directing that the FCC consider forbearing from the application of many of these provisions to the wireless marketplace," he said. "The commission did significantly forbear, and the telecommunications industry has repeatedly and resoundingly lauded this approach as well-suited to an emerging technology and welcoming to investment and innovation."

Republicans denounced the move, while several prominent Democrats--and public interest groups--threw their support behind the approach. Robert McDowell and Meredith Attwell Baker, the two Republican FCC commissioners, sharply countered Genachowski's portrayal of his approach. 

"This proposal is disappointing and deeply concerns us," McDowell and Baker said in a statement. "It is neither a light-touch approach, nor a third way."

A CTIA spokeswoman did not immediately have a comment on Genachowski's statement. However, in a recent interview with FierceWireless, CTIA President Steve Largent expressed his misgivings with the approach, saying reclassification is "premise we don't even want to walk down."

For more:
- see Genachowski's official statement
- see the FCC's legal argument (PDF)
- see this WSJ article (sub. req.)
- see this WSJ article (sub. req.)
- see this Washington Post article
- see this Washington Post article
- see this Bloomberg article
- see this Reuters article

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