EDITOR’S NOTE: This entry was written on May 6, prior to the Federal Communications Commission (FCC) releasing a number of commissioners’ comments on regulating broadband access.
FCC Chairman Julius Genachowski is expected to announce today that the commission will initiate rulemaking procedures to reclassify broadband as a telecommunications service, reversing the 2005 policy that Chairman Martin, his predecessor, established. This is the course of action we expected the FCC to take all along.
The statement is said to include commitments to a lighter touch in broadband than would normally be offered in telephony, but just what that means is difficult to say, given that Title II requirements have strong statutory grounding in the Telecom Act itself. One area of particular concern is how mobile broadband would be regulated; as we hear it, the FCC is going to propose viewing wireline and wireless broadband differently, perhaps benefiting most from the “lighter touch.”
The FCC has considerable latitude to simply not apply certain rules (called “forbearance” in Section 706 of the Act) to promote broadband, and so in theory it could apply Title II rules a la carte, which is what we’re hearing it will do. This rule-making process won’t end quickly though; the FCC must first release a Notice of Inquiry (NOI) and then follow up with a Notice of Proposed Rulemaking (NPRM) before issuing a final order.
Interestingly, the FCC sent a letter to U.S. Rep. Henry Waxman, D-Calif., clarifying the current regulatory status of broadband, which outlines the basis for the earlier decision and thus illustrates some points where the decision might be changed. The author, Commissioner McDowell, is said to favor sustaining the current position.