FCC "Third Way" Compromise Challenged

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FCC Chairman Julius Genachowski this week unveiled an ambitious compromise to enable the agency to pursue its broadband plan and network neutrality framework without imposing undue control over the broadband industry. The "third way" strikes a balance between the unregulated status quo, and reclassifying broadband under Title II regulations, and it has distinct advantages over either alternative, but that won't stop efforts to strip the FCC of authority.

The FCC is tasked with regulating and protecting communications, but big business broadband interests would prefer to remain unregulated.
In a statement explaining the "third way" framework, Genachowski cited the core mission of the FCC. "More than 75 years ago, Congress created the Federal Communications Commission with an explicit mission: "to make available, so far as possible, to all people of the United States . . . A rapid, efficient, Nationwide, and worldwide wire and radio communications service with adequate facilities at reasonable charges, for the purpose of the national defense, [and] for the purpose of promoting the safety of life and property through the use of wire and radio communication.""

The proposed framework--a sort of Title II "lite"--applies a limited subset of Title II controls that clarify the scope of FCC authority over wired and wireless broadband, without subjecting providers to the entire gamut of Title II restrictions. It is far from revolutionary--merely stating officially the authority that has been granted by consensus to the FCC for decades, but potentially challenged in the wake of the court decision in Comcast v FCC .

Consumer advocacy groups and content providers are fairly unanimous in supporting the efforts of the FCC to assert control over broadband. The Open Internet Coalition--backed by Google, Amazon, Netflix, eBay, and other Internet content and service providers--issued a statement applauding the third way model. "This framework will ensure that consumers have access to an open Internet, one that would preserve a level playing field for all participants. And 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."

Meanwhile, the broadband providers that will be governed under the third way framework have predictably come out in opposition. Verizon issued a statement claiming that the FCC has no legal standing for imposing the new guidelines.

Republican lawmakers have gone even farther--resurrecting a bill initially drafted by Senator McCain which would prohibit the FCC from exerting any authority over the Internet. What will they do for an encore? Craft legislation barring NASA from pursuing projects or conducting experiments outside of Earth's atmosphere? Perhaps, push a bill denying the authority of the IRS to collect taxes?

A joint statement from the two Republican FCC commissioners, McDowell and Baker, also opposes the proposed third way framework, claiming "After several government investigations, no evidence of systemic failure in the broadband market has been presented to justify this new, more onerous regulatory regime."

The statement continues "Additionally, without a specific mandate from Congress, the appellate courts are likely to hand the Commission another stinging rebuke for attempting to shatter the boundaries of its statutory authority. This proposal risks the credibility of our institution: Government agencies simply cannot create new legal powers beyond those granted by Congress."

But, that is the disconnect. The agency is called the Federal Communications Commission for a reason. It has an obligation to fulfill the charter mandated by Congress and ensure that reliable, cost-effective communications are available to all citizen of the United States. The proactive efforts to fulfill that goal do not have to be supported by any evidence of a prior systemic failure.

The efforts of the FCC to assert regulatory authority over broadband are clearly within the scope of authority granted by Congress in the mission statement quoted by Genachowski, or stated in the refined mission stated on the FCC Web site "The FCC was established by the Communications Act of 1934 and is charged with regulating interstate and international communications by radio, television, wire, satellite and cable."

The classification of Internet providers under Title I was based on their role as content providers rather than communications providers. However, technology evolves rapidly and broadband--both wired and wireless--is at the heart of the future of communications. The national defense, the promotion of safety and life, and the general daily commerce critical to the productivity and stability of the United States all rely on broadband access.

The FCC could leave the broadband industry to govern itself, but the meltdown of the deregulated financial industry and subsequent fallout to the United States and the rest of the world illustrate that may not be a wise course of action--no matter how much the broadband industry might claim otherwise.

You can follow Tony on his Facebook page , or contact him by email at tony_bradley@pcworld.com . He also tweets as @Tony_BradleyPCW .

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