The National Broadband Plan Needs the Third Way
Regarding Reclassification: A series of blog posts exploring the legal landscape of Communications Act Title I and II reclassification
Yesterday, the Federal Communications Commission took the first major step towards reclassifying broadband Internet access as a telecommunications service. Among other issues, the Notice of Inquiry (NOI) opened on Thursday seeks comment on a new legal framework for broadband called the "Third Way," a proposal that reaches a compromise between Title I ancillary authority and full Title II authority under the Communications Act. The Commission developed the "Third Way" to overcome a legal setback in Comcast v. FCC and establish a solid legal foundation for the effective protection of broadband consumers and the timely implementation of the National Broadband Plan.
Chairman Julius Genachowski crafted the "Third Way" after the Comcast decision threw the FCC's authority over broadband into question. The proposal also brings the Commission's broadband policy in line with current consumer views of broadband and reduces legal uncertainty regarding the Commission's authority to pursue the goals of the National Broadband Plan.
A brief history of broadband classification
Yesterday's Notice of Inquiry is an important step forward in the FCC's effort to refine its approach to the Internet. Historically, the FCC has exercised authority over Internet access, under alternately, Title I and Title II of the Communications Act. The Commission generally regulates telecommunications services based on its Title II authority over common carriers, and holds minimal regulatory authority over information services under its Title I ancillary authority.
In 2002, the FCC classified broadband Internet access service as a Title I information service, based on a finding that the two components of broadband - the basic transmission of data and the enhanced information services such as email - exist as a functionally-integrated information service.
When the Commission reclassified broadband as an information service, it maintained only limited, ancillary authority through the so-called "necessary and proper clause" of Title I. The DC Circuit found in April that this ancillary jurisdiction must be tied to a direct statutory mandate, which did not exist for the nondiscrimination rules the Commission had attempted to enforce against Comcast.
The "Third Way" calls for a reclassification of broadband Internet access service that would differentiate between the basic telecommunications service and the information services it delivers. By requiring the FCC to forbear or refrain from enforcing all but six sections of Title II, the proposal is narrowly tailored to ensure protection for broadband consumers and encourage broadband investment.
"It no longer makes sense to assume that consumers view broadband connectivity and the additional services delivered by the provider as functionally integrated and inseparable."
The move towards a two-pronged approach to broadband reflects a shift in the way consumers use and understand broadband Internet access. In the past, consumers often subscribed to an Internet provider to take advantage of its email, newsgroup, and web hosting services considered integral to Internet connectivity. Today, consumers are more likely to subscribe to a broadband provider for basic Internet access and to rely on independent web services for free email accounts and web and blog hosting. It no longer makes sense to assume that consumers view broadband connectivity and the additional services delivered by the provider as functionally integrated and inseparable.
Benefits of the "Third Way"
After the Comcast decision, the Commission's ability to promote the goals of the National Broadband Plan is uncertain. Comcast arose as a challenge to the FCC's finding that the cable broadband provider had violated the Communication Act's nondiscrimination policies by throttling and even blocking some peer-to-peer downloads of its customers. By ruling that the statute did not mandate the Commission to enforce these policies under its Title I ancillary authority, the decision undermined the FCC's ability to enforce nondiscrimination rules and other National Broadband Plan policies.
Bringing the transmission component of broadband Internet access service under Title II would strengthen the FCC's legal authority over broadband connectivity and therefore reduce the likelihood that the legal issues surrounding the implementation of the National Broadband Plan will be thrown into litigation for years to come.
In particular, reclassification would enable the Commission to modernize the Universal Service Fund, utilizing it to expand broadband Internet access to underserved areas across the country. The Commission would also regain the authority to enforce other National Broadband Plan policies, including information privacy rules, truth-in-billing requirements, and other consumer protection principles.
"Third Way"reclassification of broadband Internet access service is necessary to implement the policies of the National Broadband Plan efficiently and with legal certainty. Without reclassification, Congress' plan to expand broadband connectivity to underserved communities, to increase broadband speeds across the country, and to protect consumers from unjust and unreasonable practices may be delayed or halted.
Co-Authored by Alexandra Wood and Amina Fazlullah