The FCC's New Plan for Broadband (and Why Nobody's Happy About It)

The FCC was told fairly bluntly it doesn't have the power to mandate net neutrality. So! Time for a new plan.

The problem, as FCC Chairman Genachowski sees it, is that the FCC can keep trying to regulate stuff using indirect authority (which sucks because it doesn't go far enough, as the chairman sees it), or they could reclassify internet communications, so that the FCC has direct authority, but that would mean ISPs would have crazy new regulatory requirements (which sucks because it goes too far down the regulatory road).

Hence, the third way, which tries to neatly slip between the two extremes by breaking broadband up into different components, subject to different regulations, giving the FCC what the chairman says is "modest authority" over broadband, shoring up the shaky legal ground its internet powers sit on following the Comcast decision:

• Recognize the transmission component of broadband access service-and only this component-as a telecommunications service;
• Apply only a handful of provisions of Title II (Sections 201, 202, 208, 222, 254, and 255) that, prior to the Comcast decision, were widely believed to be within the Commission's purview for broadband;
• Simultaneously renounce-that is, forbear from-application of the many sections of the Communications Act that are unnecessary and inappropriate for broadband access service; and
• Put in place up-front forbearance and meaningful boundaries to guard against regulatory overreach.

The main point being that under this plan, "the transmission component" of broadband falls under the FCC's direct authority—not any of the actual content on the internet, or how much it costs—which the FCC says wouldn't change much for ISPs, since it's narrowly targeted (it "would not give the FCC greater authority than the Commission was understood to have pre-Comcast"), but at the same time, it would let the FCC move forward on the things it needs to do, like work on the national broadband plan. The upshot is that while broadband wouldn't be regulated as tightly as say, telephone service, the FCC is interested in applying a limited form of net neutrality, limiting the ability of ISPs to discriminate against particular services or applications or websites.

Broadband providers hate it, as the NYT and WSJ show, because they think it goes too far, with Verizon saying it's "legally unsupported," and Republicans apparently passing around proposed legislation from a year ago that would ban the FCC from regulating the internet. And so do the hardcore pro-net neutrality groups, thinking the FCC isn't grabbing the authority it really needs, like Public Knowedge. Well, you know, you can't make everybody happy.

Though re-watching this clip of Al Franken reaming Comcast's CEO is still pretty entertaining. [NYT, WSJ, Broadband.gov]