Genachowski charts a third path to FCC internet oversight


Citing as widely accepted the idea that the FCC needs “backstop authority” to protect consumers and guard against unfair practices, FCC Chairman Julius Genachowski announced that he will pursue a modified approach to internet regulation that will use a handful of Title II provisions that will be applied only to the transmission component of internet service provision.

Explaining his basis for acting, Genachowski said, “Consumers do need basic protection against anticompetitive or otherwise unreasonable conduct by companies providing the broadband access service (e.g., DSL, cable modem, or fiber) to which consumers subscribe for access to the Internet. It is widely accepted that the FCC needs backstop authority to prevent these companies from restricting lawful innovation or speech, or engaging in unfair practices, as well as the ability to develop policies aimed at connecting all Americans to broadband, including in rural areas.”

Genachowski once again claimed that the Supreme Court decision said nothing about the FCC’s authority to oversee the internet and provide for net neutrality; it simply rejected the legal theory put in place by a prior FCC regime.

It boils down as to whether the internet is considered to be a telecommunications service, over which the FCC would have clear authority, or an information service, as it was labeled back in 2002 and over which the FCC only had limited “ancillary” authority.

The keys to the FCC’s new approach are these:

a. Recognize the transmission component of broadband access service—and only this component—as a telecommunications service;

b. Apply only a handful of provisions of Title II (Sections 201, 202, 208, 222, 254, and 255) that, prior to the Comcast decision, were widely believed to be within the Commission’s purview for broadband;

c. Simultaneously renounce—that is, forbear from—application of the many sections of the Communications Act that are unnecessary and inappropriate for broadband access service; and

d. Put in place up-front forbearance and meaningful boundaries to guard against regulatory overreach.

Genachowski’s approach quickly attracted favorable reviews from legislators and watchdogs alike, and negative reviews from the two Republican Commissioners, Robert McDowell and Meredith Baker.