FCC’s Third Way Approach

As expected, the FCC has decided to reclassify Internet broadband as a telecommunications service. It’s approach is to apply Title II common carrier requirements to Internet broadband, but forbear most of the provisions except six, those associated with denial of service and unreasonable practices (in other words, net neutrality).

You can read the legal theory behind the reclassification and forbearance here.

Updated: After reading through the legal reasoning behind the FCC decision, I was nodding in agreement with some of the ideas being explored. One is that different parts of Internet communications require separate regulatory approaches.

Yes, the communications part of broadband cable should have common carrier obligations. The reclassification will do just that. But to accomplish this with a light touch, the FCC will forbear most of the provisions: in other words, broadband transmission is common carrier (Title II) except it’s kind of not. Specifically, control of pricing has been renounced.

The model the FCC is using for broadband transmission as common carrier is wireless voice. Unfortunately, there’s actually a provision that Congress passed in 1993 to allow the FCC to regulate cell providers but giving it the power to refrain from enforcing all the Title II machinery.

It’s revealing that in Genachowski’s separate statement he calls this an interim solution — one that he believes will hold up in the courts—and hints that the FCC may need more authority from Congress.

Based on statements from ATT and Comcast, this FCC reclassification will be challenged, and I strongly suspect Congress will have to step in  and (asking too much, I know) make clearer rules regarding how to apply common carrier obligations to parts of the communications stack.