FCC: Split Decision On Next Step For Broadband Internet Access

The FCC on Thursday voted to give itself authority to regulate broadband Internet access transmission, but two of the five commissioners dissented, citing a potential slowdown in broadband access investment and a loss of U.S. Internet leadership.

The Federal Communications Commission is opening a new proceeding and invited public comment to help identify which of three ways to regulate broadband Internet access is best.

Specifically, the FCC wants to look at whether Broadband Internet service should continue to be classified as an "information service," as is the current situation; as a "telecommunications service;" or as some possible "third way."

That "third way" would leave Internet content and applications unregulated under Title I of the Communications Act, identifying wired broadband Internet service as telecommunications service.

The FCC is also seeking comment on how to classify terrestrial wireless and satellite broadband Internet services.

The decision to continue exploring the alternatives comes in the wake of the FCC's decision in May to regulate different forms of Internet access in different ways, paving the way to classify the transmission component of broadband access service as a telecommunications service.

According to the FCC, that is a more acceptable alternative to either classifying broadband Internet service as an "information service" or classifying broadband Internet connectivity as a "telecommunications service."

The FCC's reasoning is that such a move would offer a more solid legal foundation, make it clear that the FCC is not regulating the entire Internet, and would establish reasonable regulatory boundaries.

There has been a lot of pressure on the FCC to come up with a coherent policy for regulating broadband Internet access. In May, House Democrats and Senate Republicans ganged up on the FCC in an effort to convince the regulatory body to drop its classification of the service as a telecommunications service.

In its Thursday briefing on its decision, the FCC acknowledged that a recent decision of the U.S. Court of Appeals for the D.C. Circuit cast doubt on whether the FCC can "ensure fair competition and provide consumers with basic protections when they use today’s broadband Internet services."

"Today’s action begins the process of identifying the best way forward to ensure a solid and narrowly tailored legal foundation for implementing key recommendations of the National Broadband Plan -- such as refocusing the federal universal service program on promoting broadband deployment and adoption, ensuring consumers have access to relevant information about their broadband services, customer privacy, and access for people with disabilities – as well as for preserving the open Internet," the FCC wrote.

However, it was a split decision, with Commission Chairman Julius Genachowski and two Commissioners agreeing to the move, and two other Commissioners dissenting.

Next: Three Of Five Commissioners Agree On Upcoming Discussions

Genachowski, in a statement issued on Thursday, said he supported Congressional efforts to update the Communications Act, but that the light regulatory framework envisioned in the "third way" is best for helping ensure continued investment in broadband Internet access.

"Internationally, the Third Way would enable continued leadership on communications policy and Internet freedom, while doing nothing would leave the U.S. virtually alone in the world in not having tools to protect broadband competition and consumers and preserve Internet freedom and openness," Genachowski wrote. "I suggested the Third Way approach as a reasonable and narrowly tailored path for promoting the massive private investment we need in broadband, and achieving broadly supported policy goals. It is a preferable alternative to the approach of applying full Title II to broadband, an approach that is unacceptable to me."

Commissioner Michael Copps, who agreed with Genachowski, wrote in his statement that the "wrong-headed policies of recent years" is chaotic for consumers, innovators, and large Internet companies, and that the U.S. could fall behind other countries in building " consumer-friendly advanced telecommunications."

"Beware of all the slick PR you hear, and remember that much of it is coming from lavishly-funded corporate interests whose latest idea of a 'triple play' is this: (1) slash the FCC’s broadband authority; (2) gut the National Broadband Plan; and (3) kill the open Internet," Copps wrote.

Also agreeing was Commissioner Mignon Clyburn, who wrote there are efforts by large businesses to stifle investment in broadband access.

"I can understand why powerful companies balk at government oversight. They view any government authority as a threat to their unbridled freedom. Indeed, if it were up to them, we would not enact rules; but rather, rely on 'voluntary organizations and forums' made up solely of industry personnel to give us advice on how to serve as a backstop for consumers. I suppose one benefit of this model is that I could significantly shorten my workday," Clyburn wrote.

Next: Two Commissioners Dissent, Citing U.S. Leadership

Dissenting from the FCC's decision was Commissioner Robert McDowell, who wrote that he disagreed with the entire premise of classifying broadband access under Title II because it has already caused harm in the marketplace and it will cause the U.S. to fall behind other governments in providing access.

"For decades now, the international consensus has been for governments to keep their hands off the Internet and to leave Internet governance decisions to time-tested non-governmental technical groups. Once that precedent is broken, it will become harder to make the case against more nefarious states that are meddling with the Internet in even more extensive ways than are contemplated here. In short, we will have lost the moral high ground," McDowell wrote.

Also dissenting was Commissioner Meredith Baker, who wrote that a strong policy is already in place to achieve current goals.

"Although I generally support building robust public records to bolster the Commission’s work and asking questions that lead to a developed analysis of all sides of an issue, this is the rare case where opening a proceeding creates so much regulatory uncertainty that it harms incentives for investment in broadband infrastructure and makes providers and investors alike think twice about moving forward with network investments under this dark regulatory cloud. This outcome can only harm consumers who need better, faster, and more ubiquitous broadband today," Baker wrote.