FCC Votes To Consider Reclassifying Broadband, Change Faces Uphill Battle

The Federal Communications Commission's decision Thursday to consider reclassifying broadband access as a "Title II" telecommunications service was met with cheers by neutrality advocates and leading Democrats, but is already facing pushback from Internet service providers and some Republican lawmakers.

Within hours of the FCC's 3-2 vote, Reps. Cliff Stearns (R-Fla.) and Joe Barton (R-Texas) wrote a letter to Democratic House leaders requesting a hearing "on the legal validity and policy consequences" of the plan -- which they described as a proposal "to regulate the Internet."

"With 95 percent of the country having access to broadband, and 200 million subscribers and counting, we do not see any urgency to legislate," they wrote.

Leading Democratic lawmakers, on the other hand, expressed support for the proposal. "In the short term this is the right course and the right thing to do," said Sen. Jay Rockefeller (D-W.Va.), chairman of the Committee on Commerce, Science, and Transportation. He added that in the long term, "we need to develop consensus to update the law, further safeguard consumers, and spur universal broadband deployment."

The vote itself, which split on party lines with the two Republicans dissenting, was only to open a proceeding to determine how broadband service should be classified. The FCC proposed three possibilities. The first is to continue to treat broadband as an information service subject to Title I of the Communications Act. The second is to reclassify broadband as a Title II "telecommunications service." The third -- drawing on a plan put forward last month by chairman Julius Genachowski -- is to reclassify broadband access as Title II while agreeing to forbear from many of the regulations applicable to telephone companies, including ones related to pricing.

Genachowski touts that latter proposal, the so-called "third way," as an avenue to "continue the same light-touch approach to broadband access policy that the agency has pursued for the past decade."

He, along with other supporters, says the third-way approach will restore the FCC's ability to enact neutrality regulations that would ban Internet service providers from either degrading or prioritizing traffic.

The FCC had already opened a proceeding to create such regulations when a federal appellate court ruled that the FCC had no authority over broadband access because it was classified as a Title I service. The court in that matter vacated the FCC's 2008 finding that Comcast violated neutrality principles by throttling peer-to-peer traffic.

Genachowski said Thursday that the court's decision in that case "created uncertainty in an area that had been widely regarded as settled."

Comcast executive vice president David L. Cohen said in a statement that the company was "pleased" that the FCC's notice of inquiry "considers all options and appears to lean toward a narrowly tailored effort to protect consumers while ensuring that investment and development of broadband networks will continue."

Cohen added that Comcast was "concerned about unjustified regulation" but also described the FCC vote as a "rational next step as all stakeholders continue to work together to keep the Internet ecosystem growing and open."

Some other ISPs reacted more negatively. AT&T Senior Executive Vice President Jim Cicconi called the FCC's decision "troubling and, in many respects, unsettling."

"The Internet is commonly defined as 'a network of networks,' and the FCC proposes to regulate broadband networks virtually end to end under a regulatory structure devised in 1934 for monopoly telephone networks," he said in a statement. "This is impossible to justify on either a policy or legal basis, and we remain confident that if the FCC persists in its course -- and we truly hope it does not -- the courts will surely overturn their action."

Neutrality advocates, on the other hand, praised the FCC's move. Gigi Sohn, president of Public Knowledge, said the FCC "acted with uncommon courage today to make certain that everyone in the U.S. has a chance to participate in the 21st century economy and that consumers are protected from abuses by large telecommunications companies."

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