WASHINGTON--The FCC voted to accept public comments on a proposal to reclassify broadband as a Title II common-carrier service. This move is seen as a key prerequisite for giving the commission the authority to approve net neutrality regulations for wireless and wired networks.
At its open monthly meeting today, the commission voted, 3-2, to approve a notice of inquiry to accept public comments on whether and how to reclassify broadband. The notice seeks comment on three options: whether the FCC should keep the status quo, and classify broadband as an information service; whether it should apply all of Title II's rules to broadband; or whether the commission should classify broadband as a Title II service but "forbear" from many of Title II's provisions. It also seeks comments on other alternatives. Initial comments are due July 15, and reply comments are due Aug. 12.
The commission's three Democrats--Chairman Julius Genachowski and Commissioners Michael Copps and Mignon Clyburn--voted to move the measure forward. The commission's two Republican members--Robert McDowell and Meredith Attwell-Baker-- strongly dissented against the measure.
Like many FCC proposals, this is just the beginning of a longer process. The FCC will have to examine the findings of the notice and then vote on its next move. Additionally, this proceeding is separate from the draft net neutrality rules the FCC adopted last October.
Last month Genachowski kicked new life into the debate when he called for a legal strategy that will allow the commission to move ahead on net neutrality. Genachowski's so-called "third way" 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.
Genachowski's proposal stems from a U.S. Court of Appeals ruling in April that said the FCC overstepped its statutory authority when it cited Comcast in 2008 for interfering with subscribers' access to peer-to-peer file sharing services. The ruling, Comcast v. FCC, said the FCC could not rely on its "ancillary jurisdiction" under Title I of the Telecommunications Act to regulate how Comcast managed its network.
"I recognize that there are pros and cons to all of the potential solutions that have been raised, and that this isn't an easy issue, or one without complexity," Genachowski said. However, he urged his colleagues to "put rhetoric and posturing aside and work together to solve the problem created by the court case." Genachowski also noted that in tandem with the FCC's action, Congress is working to clarify the FCC's authority under the Telecommunications Act.
The proposal has drawn protest from big telcos like AT&T (NYSE: T) and Verizon (NYSE:VZ), which have said that reclassification could chill investment. Genachowski's proposal has also drawn fire from the CTIA, which has argued that net neutrality rules are unnecessary for wireless networks.
McDowell said that he disagreed with the premise of the inquiry, and said the commission should wait for Congress to act on the issue of the FCC's authority. He said that reclassifying broadband will "place the heavy thumb of the federal government on the scale of the market."
The approach outlined by Genachowski calls for the transmission component of broadband, and only that component, to be recognized as a telecommunications service. Under his approach, the commission would 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."
That statement has not mollified critics of Genachowski's proposal, including AT&T CEO Randall Stephenson, who said he worries that a future commission might decide to reverse the FCC's position on forbearance. "I'm a 3-2 vote away from the next guy coming in and saying I disagree with that, I take it away," he said this week in an interview with the Wall Street Journal.