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FCC's Broadband Reclassification: What's Next?

The U.S. Federal Communications will move quickly to claim some regulatory authority over broadband after Chairman Julius Genachowski announced the agency would reclassify broadband as a regulated service.

The FCC will vote on an item to start the process of reclassifying broadband transmission as a regulated, common-carrier service in the next month or so, Bruce Liang Gottlieb chief counsel to Genachowski said Thursday.

The FCC announced Wednesday that it would move to reclassify broadband from a largely unregulated information service to a regulated common-carrier service in response to an appeals court decision in April. The court ruled that the agency does not have the authority to enforce informal network neutrality rules in a case involving Comcast's throttling of peer-to-peer traffic.

Under Genachowski's plan, the FCC would move to reclassify broadband as a regulated service under Title II of the Communications Act, but the agency would also move to exempt most broadband service from new regulations. The moves would be designed to reassert the limited authority the FCC thought it had before the Comcast decision by the U.S. Court of Appeals for the District of Columbia Circuit, Gottlieb said during a briefing with reporters.

"This is ... not a series of decisions and proposals that is meant to change policies," he said. "Quite the opposite. It's meant to create a solid foundation for a consensus around the agency's role and authority with respect to broadband."

The first step for the FCC will be to vote on a notice of inquiry asking the public for its input on the proper classification of broadband transport services, Gottlieb said. In a notice of inquiry, or NOI, the FCC asks the public to generate ideas about a topic.

The FCC would then issue a notice of forbearance to clarify what Title II regulations it does not intend to apply to broadband, he said.

The FCC would not issue a notice of proposed rulemaking in this case, because the reclassification of broadband isn't a typical rulemaking proceeding, Gottlieb said. Instead, after the NOI, the FCC would issue a declaratory ruling if it decides to reclassify broadband, he said.

Some critics have questioned whether later incarnations of the FCC would honor the forbearance actions passed by this FCC. Congress gave the FCC the ability to forbear some regulations 17 years ago, noted FCC General Counsel Austin Schlick.

"We have never gone back on forbearance," he said.

The legal authority for reclassifying broadband as a Title II service rests in a 2005 case that went to the U.S. Supreme Court, Schlick said. In the so-called Brand X case, a 6-3 majority of the Supreme Court affirmed the FCC's decision at the time to classify cable broadband as an unregulated information service, and the majority of justices said they needed to defer to the FCC's decision in the highly technical area.

Three dissenting justices in the case argued that broadband transmission service should be classified separately from Internet content services and that's what the FCC is attempting to do now, Schlick said. The FCC's proposal is a "reasonable" approach to separate the classification of broadband transport from broadband content, he said.

Several telecom experts disagreed. The FCC's decision could slow innovation and investment in broadband networks, said Tom Tauke, vice president of public affairs and policy at Verizon Communications. Broadband was excluded from Title II regulations in the Telecommunications Act of 1996, he said.

"Those regulations were designed for different services delivered by different networks in different times," Tauke added in a statement. "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."

However, 13 Internet companies, including Google, Amazon.com and eBay, praised the move to reclassify broadband in a letter sent to Genachowski.

"We applaud the middle ground approach that you have proposed," the letter said. "We share your belief that this course will create a legally sound, light-touch regulatory framework that benefits consumers, technology companies, and broadband Internet access providers."

The Genachowski proposal will ensure an open Internet with net neutrality rules, the companies said. "It does so without regulating the Internet but only applying basic rules of the road to the transmission services that provide access to the Internet," the letter said.

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