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FCC to Seek Net Neutrality Using New Legal Framework

Tony Romm

Federal Communications Commission Chairman Julius Genachowski testifies in Washington, DC, in March 2010. (AFP/Getty Images/File/Chip Somodevilla)

Federal Communications Commission 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 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 -- like 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 could 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, but does not cast the kind of regulatory cloud that would chill investment and innovation by ISPs."

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."


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"The opinion therefore creates a serious problem that must be solved so that the Commission can implement important, commonsense broadband policies," Genachowski said of the ruling, which favored Comcast, noting the FCC still hopes to carry out much 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 long-standing phone company rules to broadband providers.

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 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 comprised of three Democrats who have signaled previously they would support reclassification.

"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."

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