Reversing a controversial deregulation decision made by the Bush administration, the FCC will seek to force broadband internet providers to adhere to some of the rules that have long applied to the nation's landline phone providers.
The decision will be announced officially tomorrow by FCC Chairman Julius Genachowski, according to a senior FCC official's statement Wednesday, and will likely set off a firestorm of protests from the nation's well-connected telecommunications industry.
The FCC says the move is a response to a recent court ruling that called into question whether the FCC had authority to regulate how the nation's broadband providers run their networks, including whether providers can block content. The ruling came in a case where Comcast appealed an FCC order that forbade the carrier from blocking peer-to-peer file sharing.
The federal appeals court decision also called into question whether the FCC would have the legal authority to carry out much of its lauded National Broadband Plan. Consumer groups have been calling for the FCC to reclassify broadband providers. Broadband providers counter that regulation will stymie investment and make it less likely they will invest in new broadband infrastructure like fiber optic cables.
"The Chairman will seek to restore the status quo as it existed prior to the court decision in order to fulfill the previously stated agenda of extending broadband to all Americans, protecting consumers, ensuring fair competition, and preserving a free and open Internet," the FCC official said.
The Bush administration's FCC freed cable and DSL providers from having to rent their lines to competitors by reclassifying them as so-called Title I services, or information services. That meant broadband providers escaped the heavier regulation of Title II that applies to "telecommunications services," namely the nation's phone lines. Those rules include price controls and provisions that let users contact anyone they like using any device they care to plug in -- whether that's a modem or a Mickey Mouse phone.
The FCC says it will move to put broadband back under Title II, but only apply a few of the 48 or so regulations under that portion of law, using a process called "forbearance" to cancel out the rules it considers unnecessary.
"The Chairman will outline a 'third way' approach between a weak Title I and a needlessly burdensome Title II approach," the official said. "It would 1) apply to broadband transmission service only the small handful of Title II provisions that, prior to the Comcast decision, were widely believed to be within the Commission's purview, and 2) would have broad up-front forbearance and meaningful boundaries to guard against regulatory overreach."
Here the official is likely referring to the so-called Four Freedoms, which are openness principles that the FCC issued in 2005. They essentially promise that broadband users can use the device they want, run the programs they want and access the services they want, so long as they don't harm the network.
The commission never officially tried to enforce them until Comcast was caught secretly blocking peer-to-peer file sharing. Then, an appeals court in D.C. found the FCC had no power to enforce them because the FCC had reclassified broadband as an "information service."
Reclassification is often referred to as the "nuclear option," because it undoes a decision that actually was contested all the way at the Supreme Court. Even if the FCC describes its approach to reclassification as a moderate "third way," expect a fierce battle from the nation's telecom giants and from Republicans like Kay Bailey Hutchison, who last fall wanted to cut the FCC's budget over a move to formally apply net neutrality rules to internet providers.
It's not clear if the FCC will seek to apply the reclassification only to wireline broadband providers, or if it will also extend them to the wireless industry, as well.
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