Sound off: The FCC's 'third way' on net neutrality

FCC Chairman Julius Genachowski yesterday announced his decision to push ahead with a new legal strategy that will allow the commission to implement net neutrality regulations for wireless and wired networks. The decision essentially calls for a reclassification of 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 called the action a "third way" that will not be overly burdensome. Public interests groups that had been lobbying for net neutrality reacted to the news with joy. Meanwhile, those opposed to net neutrality, especially AT&T Mobility, issued harsh rebuttals.

Here's a sampling of some of the reactions to Genachowski's proposal:

We are deeply disappointed that, in order to deal with an adverse court decision, the FCC chairman has decided to subject all broadband facilities, including Internet backbones, to common carriage regulation under Title II. We believe this is without legal basis. Make no mistake--when it regulates the networks that comprise the Internet, the FCC is in fact, and for the first time, regulating the Internet itself. There is no statutory basis for doing so--indeed it is directly contrary to Congress' stated intentions--and is being done without any compelling evidence that would justify a reversal of the FCC's prior decisions on this issue. If the FCC follows through with the chairman's stated intent, it will have a direct impact on jobs and investment in one of the areas of the U.S. economy that many hoped could help lead the recovery.

We do not question the chairman's good faith or his genuine desire to craft a ‘third way.' But the fact remains that this approach would subject Internet facilities to some of the most onerous regulatory provisions on the books--provisions drafted in 1934 for a monopoly voice network. To regulate the most modern Internet technology of the 21st century under a model designed for a different era is hard to explain and even harder to justify legally. The fact remains that Congress has never given the FCC explicit authority to regulate the Internet under Title II. Simply because it desires to do so, or is concerned because a court has questioned its authority to do so, does not by itself confer legal authority. That can only come from the Congress in our system of laws. If the FCC is concerned about its authority, or is unsatisfied with available Title I remedies, the right and proper step is to place that question before the Congress. We feel confident that if the FCC proceeds down this path, the federal courts will ultimately reach the same conclusion.

AT&T has always supported Internet openness, and we were one of the first to embrace the FCC's Open Internet Principles. We have always abided by them, and pledge we will continue to do so. As the FCC continues its process to resolve questions about its authority in this area, we will work with them constructively in hopes of outlining legal alternatives that can ensure adequate authority for the Commission without undue risk to jobs and investment." --Jim Cicconi, AT&T's senior executive vice president, external and legislative affairs

The Comcast decision has brought into question the scope of the FCC's jurisdictional authority over broadband services. In its announcement, the FCC has stated that it will attempt to address this ambiguity through a public proceeding that will seek 'a third way.'

While still reviewing the implications of the FCC's legal arguments, Sprint appreciates the FCC's statement that any regulation it may assert would be through a light regulatory touch. Sprint agrees the past decade has seen the rapid development of a competitive and innovative commercial mobile wireless communications marketplace under such a light regulatory touch.

Sprint commends the FCC for the cautious approach it is taking toward this complex subject. The FCC can and should foster similar growth in broadband by focusing its energies on protecting consumers by promoting competition and placing checks and balances on providers with market power." --Vonya McCann, Sprint's senior vice president for government affairs

This is a defining moment for Chairman Genachowski. He was the object of a massive lobbying campaign mounted by some of the most powerful corporations in the country, and he held his ground. The telephone and cable companies fought this outcome because they know that the alternative--stretching residual 'Title I' jurisdiction to protect consumers--is difficult if not impossible under the recent court decision in Comcast v. FCC.

Employing 'Title II Lite' regulation is the right result because it is well within the commission's discretion, and it will avoid years of pointless litigation over authority each and every time the commission acts. It will enable policymakers to protect the public's free speech rights as well as insure that consumers receive timely and accurate information about the Internet services they purchase. This approach will help insure that the Internet continues to be an engine of economic growth and that it will promote democratic discourse in American society." --Tyrone Brown, president of Media Access Project

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.

Finally we note that last fall, after Chairman Genachowski announced his intention to have a net neutrality proceeding, opponents unleashed an unprecedented shock and awe campaign against the commission even before the proposed rules were written. As Commissioner Clyburn later admonished, ‘some parties seem to prefer radioactive rhetoric and unseemly and unbecoming tactics. Such an approach may yield headlines, but will not yield positive results with me.' Opponents would do well to take this admonition to heart." --Gigi Sohn, president and co-founder of Public Knowledge

While we are disappointed with the Title II net neutrality announcement today, CTIA will continue to work to educate policymakers, including the FCC, on why net neutrality rules should not apply to wireless. This is an incredibly innovative and competitive industry that provides millions of jobs and contributes billions of dollars to our economy and is the world's leader in the provision of mobile broadband service. This complex, interdependent ecosystem is currently thriving to the benefit to all Americans. Putting that success at risk is unnecessary and dangerous, particularly in today's economic environment." --Steve Largent, president and CEO of CTIA

Today's FCC announcement raises obvious concerns about whether the chairman is suggesting a path that could ultimately harm consumers and inhibit the innovation and investment he wants to encourage.   

In enacting the 1996 Telecommunications Act, Congress intentionally excluded Internet services, like broadband Internet access, from the scope of Title II's regulatory burdens. Those regulations were designed for different services delivered by different networks in different times. 

We believe that the chairman's stated approach is legally unsupported.  The regulatory and judicial proceedings that will ensue can only bring confusion and delay to the important work of continuing to build the nation's broadband future." --Tom Tauke, Verizon's executive vice president of public affairs, policy and communications

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.

The FCC's own data indicates that we have a duopoly problem today, and a looming cable monopoly problem ahead. The commission should not unnecessarily take away the tools Congress gave the FCC to promote competition and affordability in our advanced communications markets.

We urge the commission to move speedily because consumers and Internet users are unprotected."  --Derek Turner, Free Press Research Director

The FCC has released a legal blueprint--a ‘third way'--to proceed with its plans to regulate the provision of Internet services without additional Congressional action following the Comcast decision. There is much to commend in the proposal, particularly its decision to avoid the most extreme options being foisted upon it by advocates at both ends of the spectrum. The new proposals are far less intrusive, for example, than the FCC's previously proposed ‘open Internet' rules, which would have prohibited even ‘just and reasonable discrimination' in the handling of Internet traffic. Another encouraging detail is the FCC's indication that restrictive regulation of Internet service providers' network management practices is to be avoided.

Whether the FCC's third-way proposal will indeed provide the Commission with a sound foundation for future actions remains to be seen. It is by no means certain that the FCC can compel common carrier status in today's competitive broadband Internet marketplace; past attempts have succeeded only in the presence of significant market power. Relatedly, the rationale used for ‘treating' the telecommunications component of the functionally integrated Internet service offerings in today's market--market failure or a lack of adequate competition--will also doom the agency's chances of successfully forbearing from over 40 provisions in Title II of the Act, which by definition will automatically attach by virtue of the FCC's reclassification exercise. Finally, this action is by no means a simple return to the status quo ante the Comcast decision for all segments of the broadband Internet access industry--it is a radical departure for the cable industry, the largest providers of residential broadband Internet access.

A fundamental flaw with the third-way proposal remains: will the courts view this as reasoned decision-making, taken within the FCC's Congressionally-delegated powers, or a transparent end-run around the effects of an unfavorable judicial ruling? The devil, as always, lay in the details. In the final analysis, I fear this well-intentioned but nonetheless problematic third-way forward will engender increased regulatory uncertainty, decreased investment and adverse effects for consumers." --Barbara Esbin, senior fellow at The Progress and Freedom Foundation

We are encouraged by the chairman's intriguing proposal regarding the transmission of broadband services. We look forward to working with the commission in the days ahead and learning more about the proposal.

The FCC approach will have a direct and beneficial impact on the basic services that every consumer expects from their carrier of choice, such as placing a phone call, downloading data, sharing emails, texts, and videos, and accessing  broadband  services  anywhere they go throughout the United States. --Steven Berry, RCA president and CEO

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