FCC to seek net neutrality using new legal framework

Federal Communications Commission (FCC) Chairman Julius Genachowski on Thursday announced his agency would seek to regain its lost grip on broadband by applying some of the rules that govern everything from phone companies to Internet providers.

One month to the day since a federal court stripped the FCC of that authority, setting back the agency's dual goals of expanding broadband access and instituting tough rules to ensure open Internet, Genachowski took the first steps in restoring what he described as "the shared understanding" that the FCC should protect broadband consumers.

Genachowski's announcement is sure to satisfy net neutrality proponents — from public-interest groups to companies like Google and Skype, which have long called on the commission to enforce open Internet rules. But the move will likely put Genachowski, the FCC and the Obama administration on a collision course with broadband providers — including Comcast, AT&T and Verizon — which have long questioned the FCC's authority to regulate broadband using its internal rule-making process.

Those companies and others could choose to challenge Genachowski's proposed "third way" forward in court, setting up a protracted legal fight that only Congress may be able to end with new telecommunications legislation. Comcast, however, noted in a statement on Thursday that it is "prepared to work constructively with the commission" over the next few months.

The best outcome, Comcast added, would be a series of "limited but effective measures to preserve an open Internet and implement critical features of the National Broadband Plan [that] does not cast the kind of regulatory cloud that would chill investment and innovation by ISPs [Internet service providers]."

Verizon, meanwhile, said the proposal is "legally unsupported," adding, "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.”

The FCC's new legal framework addresses a federal court ruling in April that found the FCC only had chief jurisdiction over Title II, or "telecommunications services," and did not even have "ancillary" authority over Title I, or "information services." The decision invalidated the FCC's attempt to sanction Comcast for blocking its users' access to Bit Torrent, a file-sharing service.

"The opinion therefore creates a serious problem that must be solved so that the Commission can implement important, common-sense broadband policies," Genachowski said of the ruling, which favored Comcast, noting the FCC still hopes to carry out many of the proposals it introduced as part of its National Broadband Plan.

But rather than simply taking broadband and re-designating it as a telecommunications service, as some groups thought the FCC might do, Genachowski's plan would use a procedure called "forbearance" to pick and choose aspects of longstanding phone company rules to impose on broadband providers. That approach, he said, would be far nimbler than the more heavy-handed, full reclassification that some net neutrality supporters sought.

Not all of those regulations that govern telecommunications companies would apply to the Web. For example, some of the "common carrier" restrictions on rates, and others that require phone lines to be shared, would not be imposed on the broadband community. But the bulk of rules that allow the FCC to enforce competition and determine how companies can manage their networks would, ultimately, now target Internet providers too.

However, Genachowski's statement on Thursday does not immediately usher in that new broadband regulatory framework. Rather, the FCC must embark on public comment periods, hold hearings, consult with stakeholders and vote on the proposals first. That latter element should prove easiest, as the FCC is composed of three Democrats who have signaled they would support reclassification.

However, the FCC's two Republican members -- Commissioners Robert McDowell and Meredith Baker -- said in a joint statement Thursday that Genachowski's announcement was "disappointing and deeply concerns us."

"It is neither a light-touch approach, nor a third way," they said. "Instead, it is a stark departure from the long-established bipartisan framework for addressing broadband regulation that has led to billions in investment and untold consumer opportunities. It also poses serious ramifications across the globe."

Despite that early dissatisfaction, Genachowski implored industry leaders and federal officials to cooperate in pursuit of a regulatory framework amenable to all.

"The Comcast decision has created a serious problem," Genachowski said. "I call on all stakeholders to work with us productively to solve the problem the Comcast decision has created in order to ensure a solid legal foundation for protecting consumers, promoting innovation and job creation and fostering a world-leading broadband infrastructure for all Americans."