The Federal Communications Commission, not to be discouraged by a court ruling that said it had limited oversight over broadband providers, has developed a new plan that will keep it on track with its efforts to establish a National Broadband Plan. In a statement this morning, chairman Julius Genachowski revealed his plans for a proposal that would resolve the legal challenges and allow the commission to move forward. (Genachowski statement, Techmeme)
In short, the commission's latest proposal would reclassify the "transmission component of broadband access service" - and only that component - to a "telecommunications service," while leaving the other components under the label of "information services," which the FCC has limited authority over.
Essentially, that gives the FCC the authority that it thought it already had prior to the court ruling - now referred to as the "Comcast Decision."
At the same time, the plan would prevent the FCC from applying sections of the Communications Act to areas that are "unnecessary and inappropriate for broadband serviced access service" and would also put in place safeguards to prevent regulatory overreach.
Finally, a common sense approach out of Washington.
Genachowski was clear in his statement that all-or-nothing approaches wouldn't work. To take either a do-nothing approach would keep the FCC from regulating anticompetitive practices by broadband providers. At the same time, the blanket approach of classifying broadband as a whole as a telecommunications service would subject the providers to unnecessary regulation and oversight by the government while stifling innovation and investment.
Surely, the latter approach would have sent us back to a legal battlefield and slowed the momentum of developing a national plan for broadband, something that's necessary if this country doesn't want to be labeled "third world" when it comes to technology in the future.
Perhaps more impressive is the understanding by Genachowski that this approach is almost more of a temporary fix that allows the FCC to move forward, while recognizing that Congress will inevitably want to update or clarify the Communications Act - and will surely move slowly in doing so. From Genachowski's statement:
The Communications Act as amended in 1996 anticipated that the FCC would have an ongoing duty to protect consumers and promote competition and public safety in connection with broadband communications. Should congressional leaders decide to take up legislation in the future to clarify the statute and the agency’s authority regarding broadband, the agency stands ready to be a resource to Congress as it considers any such legislative measures. In the interim, however, this approach would ensure that key initiatives to address pressing national challenges can move forward.
Of course, it's not a perfect approach. Consumer watchdog groups are already raising an eyebrow with the forbearance provision that establishes government boundaries and "constraints to prevent regulatory overreach." The provision reads:
The FCC would invoke only the few provisions necessary to achieve its limited but essential goals. Notably, these are the very same provisions (sections 201, 202, and 254, for example) that telephone and cable companies agree the FCC should invoke, albeit indirectly under an “ancillary authority” approach. The Commission would take steps to give providers and their investors confidence and certainty that this renunciation of regulatory overreach will not unravel while also giving consumers, small businesses, entrepreneurs and innovators the confidence and certainty they need and deserve. Since Congress gave the Commission forbearance authority 17 years ago, the Commission has never reversed or undone a forbearance decision.
In all, it sounds like a compromise that's not intended to favor one group over another. It sounds like the mission was to look at the matter of broadband and determine what role the government should have in regulating access to broadband, not content or anything else.
Genachowski has put this new plan on the fast track, seeking public comment and then moving forward with the work at hand. Some final thoughts from his statement:
The state of our economy and recent events are reminders both of the need to be cautious and the necessity of a regulatory backstop to protect the American people. I stand ready to explore all constructive ideas and expect those who engage with us to do so constructively as well. The issues presented by the Comcast decision are a test of whether Washington can work—whether we can avoid straw-man arguments and the descent into hyperbole that too often substitute for genuine engagement.