FCC to claim some broadband regulatory power

The agency will move to reclassify broadband as a common-carrier service, an official said

The U.S. Federal Communications Commission will move to partially reclassify broadband as a common-carrier service in an attempt to move forward with net neutrality rules and its national broadband plan, an official there said Wednesday.

The FCC will move to reclassify broadband from a largely unregulated information service to a more regulated common-carrier service under Title II of the Communications Act, but the agency will try to establish that it will not regulate many areas of broadband, an FCC official said.

The decision by FCC Chairman Julius Genachowski, to be announced Thursday, comes after a decision last month by the U.S. Court of Appeals for the District of Columbia Circuit, in which the court ruled the FCC did not have the authority to enforce informal net neutrality principles against Comcast.

Many telecom law experts said the decision raised questions about the FCC's ability to create formal net neutrality rules or implement large portions of its national broadband plan, released in March.

The FCC official did not say what steps the agency would take to reclassify broadband. The agency presumably would have to go through a lengthy rulemaking proceeding to make the change.

Instead of weak regulation or heavy regulation under Title II of the Communications Act, Genachowski will seek a "third way" to ensure that the FCC has some regulatory jurisdiction over broadband, an FCC official said. The FCC's approach would be to assert jurisdiction for "only the small handful of provisions that, prior to the Comcast decision, were widely believed to be within the Commission's purview," the official said.

At the same time, the FCC would create "meaningful boundaries to guard against regulatory overreach," the official added.

Public Knowledge, a digital rights group in favor of new net neutrality rules, praised the decision.

"This is a welcome announcement," Gigi Sohn, the group's president, said in a statement. "We have been saying for months that the FCC should consider a Title II solution to the problem of how to best protect consumers and expand broadband access and adoption in the U.S. since the Comcast case was decided."

The FCC's move makes sense, added Leslie Harris, president of the Center for Democracy and Technology, an online civil liberties group.

"This is a crucial step in developing a telecommunications legal framework for the 21st century," she said in a statement. "The communications network that matters now is the Internet. It is rapidly becoming the central and indispensable platform for all types of communication and for all the free expression, commerce, and civic engagement that digital technologies enable."

But the Internet Innovation Alliance, a group advocating widespread broadband adoption, questioned why the FCC was trying to regulate broadband at the same time as it was trying to encourage broadband deployment in its broadband plan. IIA's members include AT&T, Alcatel-Lucent, Connected Nation and One Economy.

"If the goal is maximizing broadband deployment and adoption under the broadband plan, new regulations such as these will not help," said Bruce Mehlman, co-chairman of the group. "This sounds more like a political solution likely to imperil investment than a policy initiative that tackles actual challenges in the marketplace."

Randolph May, president of conservative think tank the Free State Foundation, called the FCC decision a mistake.

"I won't believe that Genachowski's going to propose regulating Internet services like legacy telephone services until I hear him say it with my own ears," he said. "The turnabout in Internet policy would be radical. It would be a mistake of historic proportions."

Earlier Wednesday, two powerful members of Congress called on the FCC to consider reclassifying broadband as a common-carrier service in order to protect net neutrality and enact the broadband plan.

A letter from Representative Henry Waxman, a California Democrat and chairman of the House Energy and Commerce Committee, and Senator Jay Rockefeller, a West Virginia Democrat and chairman of the Senate Commerce, Science and Transportation Committee, called on the FCC to consider "all viable" options to establish that it has the power to protect broadband consumers and create new programs to encourage broadband deployment.

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