Commentary

FCC Moves One Step Closer to Neutrality Rules

A divided Federal Communications Commission voted 3-2 this morning to consider reclassifying broadband access as a telecommunications service. If the plan goes through, Internet service providers would be subject to some of the same common carrier rules as telephone companies.

Chairman Julius Genachowski says that the approach would "restore the status quo light-touch framework" that existed until April, when a federal appeals court ruled that the FCC lacked authority to enforce neutrality rules banning Internet service providers from blocking traffic.

The court based its ruling on the fact that the FCC had previously classified broadband as an "information service," which isn't subject to the same types of regulations as telecommunications services.

Opponents of neutrality rules have already vowed to fight any reclassification in court. Supporters, on the other hand, take the position that the FCC is free to classify broadband however it wishes -- even if the new classification goes against what the FCC decided several years ago -- as long as the agency has a reason for changing its mind.

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Even if the opponents -- that is, telecoms and cable companies -- make good on their threat, the FCC has no realistic choice other than to proceed with a reclassification, assuming that the agency wants to play a role in shaping broadband policy.

In fact, the FCC probably is prepared for potential litigation. Shortly before Genachowski floated the "third way" last month, three law professors and leading neutrality advocates -- Marvin Ammori, Susan Crawford and Tim Wu -- wrote to the FCC and specifically proposed reclassifying just the transmission portion of broadband as a Title II service. The professors warned doing so would result in a battle but, they said, it was a winnable one.

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