June 17, 2010

FCC Releases Title II Broadband NOI for Comment

As expected, the Federal Communications Commission (FCC) earlier today voted to float a Notice of Inquiry (NOI) to “identify the legal approach that will best support its efforts to ensure universal access to affordable, high-quality broadband services; promote broadband innovation, investment, and competition; and protect and empower consumers.”

The vote to consider moving from Title I to Title II regulation of broadband services was not unanimous, however; Commissioners Robert McDowell and Meredith Atwell Baker were the dissenting parties.

Having recently experienced defeat in the U.S. Court of Appeals for the D.C. Circuit (the Comcast decision), the commission wants to avoid more court time in the future. As such, this NOI (GN Docket No. 10-127) “begins the process of identifying the best way forward to ensure a solid and narrowly tailored legal foundation for implementing key recommendations of the National Broadband Plan – such as refocusing the federal universal service program on promoting broadband deployment and adoption, ensuring consumers have access to relevant information about their broadband services, customer privacy, and access for people with disabilities – as well as for preserving the open Internet.”

The public now has been asked to comment on:

Whether the FCC’s “information service” classification of broadband Internet service remains legally sound and adequate to support effective performance of the commission’s responsibilities;

The legal and practical consequences of classifying broadband Internet connectivity as a “telecommunications service” to which all the requirements of Title II of the Communications Act would apply; and


A “third way” (forwarded a few weeks ago by FCC Chairman Julius Genachowski) under which the FCC would reaffirm that Internet content and applications remain generally unregulated under Title I of the Communications Act; would identify the Internet connectivity service that is offered as part of wired broadband Internet service as a telecommunications service; and would forbear under Section 10 of the Act from applying all provisions of Title II other than the small number that are needed to implement fundamental universal service, competition and market entry, and consumer protection policies.



The NOI also seeks comment on the appropriate classification of terrestrial wireless and satellite broadband Internet services as well other issues.

In comments released immediately after the vote, Chairman Genachowski stated, “I believe firmly and deeply in the benefits of a free marketplace of ideas and its potential to produce the best answers to hard questions, as long as all keep open minds. I ask only this of all participants in this discussion, inside and outside the commission:  Let’s not pretend that the problems with the state of broadband in America don’t exist; let’s not pretend that the risk of excessive regulation is not real, or, at the other extreme, that the absence of basic protections for competition and consumers is acceptable.”

Comments on the NOI are due July 15; reply comments are due Aug. 12. 2010.

Reaction to this vote was immediate. Competitive Enterprise Institute telecom policy analysts Ryan Radia and Wayne Crews weighed in first, with Radia writing, “America’s telecommunications landscape wilted for much of the 20th century under the FCC's public utility-style regulation – precisely the type of regulation the Commission now wishes to perpetuate in the broadband sector. To the extent that there is insufficient broadband competition in the United States, price controls and other federal mandates are to blame. Broadband users need less government, not more.”

Added Crews, “The removal of government regulation – deregulation – does not mean that the industry is unregulated. Competition, or even the threat of competition, regulates the behaviors of companies in efficient and consumer-enhancing ways. In communications, competition exists among an increasing number of platforms.”