Moving to reassert authority over broadband, Federal Communications Commission Chairman Julius Genachowski on Thursday put forward a plan to subject Internet service providers to the common carrier regulations that have long governed telephone companies.
Specifically, Genachowski proposed reclassifying broadband transmission as a telecommunications service under Title II of the Telecommunications Act. Doing so would allow the FCC to issue neutrality rules banning providers from discriminating against particular sites or applications by either degrading or prioritizing traffic.
At the same time, Genachowski also proposed that the FCC apply only a few of Title II's provisions while agreeing to forbear from terms "that are unnecessary and inappropriate for broadband access service."
Among the provisions that would not be applied are unbundling requirements, which means that Internet service providers would not have to share lines with competitors. The proposal also wouldn't affect components of broadband other than transmission, including Internet content like Google's search results.
Calling the potential reclassification a "restrained approach," Genachowski said it marked a "third way" between burdensome rules and a laissez-faire attitude.
"Heavy-handed prescriptive regulation can chill investment and innovation, and a do-nothing approach can leave consumers unprotected and competition unpromoted, which itself would ultimately lead to reduced investment and innovation," Genachowski said in a statement.
But the two Republican Commissioners, Robert McDowell and Meredith Baker, condemned the proposal as a "stark departure from the long-established bipartisan framework for addressing broadband regulation that has led to billions in investment and untold consumer opportunities."
They also warned that the proposal puts the FCC's credibility at risk. "Government agencies simply cannot create new legal powers beyond those granted by Congress," they said in a joint statement.
Genachowski's proposal was triggered by last month's court decision in the Comcast case. The U.S. Court of Appeals for the District of Columbia Circuit ruled in that case that the FCC had no authority to sanction Comcast for violating neutrality principles because the agency had power to regulate "information" services subject to Title I.
That decision left the FCC without the power to issue neutrality regulations unless it also reclassified broadband as a Title II service.
In the four weeks since the court issued the Comcast ruling, consumer advocates strongly urged the FCC to reclassify broadband as a Title II service. Telecoms and cable companies, for their part, said they believed a reclassification would be illegal and vowed litigation. Public Knowledge, which had used for reclassification, said it was "generally pleased" with Genachowski's plan, but took issue with the decision to refrain from requiring ISPs to share their lines. "Line sharing is a crucial method to ensuring the long-term vibrancy of the broadband market and to providing more choices for consumers," president Gigi Sohn said in a statement.
Not surprisingly, some ISPs criticized the initiative. Verizon's Tom Tauke, executive vice president of public affairs, policy and communications, called Genachowski's plan "legally unsupported" and indicated the company would challenge any reclassification in court. "The regulatory and judicial proceedings that will ensue can only bring confusion and delay to the important work of continuing to build the nation's broadband future," Tauke said in a statement.
AT&T also condemned the move, saying it was "without legal basis."
Comcast issued a more restrained response. "While we are disappointed with the inclination not to lean in favor of Title I regulation, we are prepared to work constructively with the Commission to determine whether there is a 'third way' approach that allows the Commission to take limited but effective measures to preserve an open Internet and implement critical features of the National Broadband Plan, but does not cast the kind of regulatory cloud that would chill investment and innovation by ISPs."
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