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UPDATE: Statement here. #

Under this narrow and tailored approach, the Commission would: #

* 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. #

And an explanation of the legal reasoning by FCC General Counsel Austin Schlick: #

When Congress amended the Communications Act in 1996, most consumers reached the Internet using dial-up service, subject then (as it is now) to Title II. Cable modem service was emerging, though, and telephone companies were beginning to offer DSL broadband connections for Internet access under Title II. Aware of the changing landscape, Congress gave the FCC authority and responsibility via section 10 of the Communications Act to “forbear” from applying telecommunications regulation, so that the new services are not subject to needlessly burdensome regulations. And in section 706 of the Telecommunications Act of 1996 (47 U.S.C. § 1302), Congress directed the FCC to use its new forbearance power to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.” #

The upshot is that the Commission is able to tailor the requirements of Title II so that they conform precisely to the policy consensus for broadband transmission services. #

. . . #

In the Joint Statement on Broadband issued earlier this year, the Commission called for reform of the universal service program to “emphasize the importance of broadband.” The Title I/information services model used by the Commission actually undermines accomplishment of this goal, because universal service support is generally available only for telecommunications services: The law defines “universal service” as “an evolving level of telecommunications services the Commission shall establish periodically” (emphasis added). Industry agrees this is a problem. AT&T (in a January 2010 white paper) and the cable industry (in a March 2010 letter) have both proposed untested theories they think might permit universal support for broadband under Title I. Recognizing broadband transmission as a separable telecommunications service would definitively solve the problem. #

Original post: #

The Wall Street Journal is reporting that FCC Chairman Julius Genachowski will announce that it is “regulating broadband lines” today. That’s not very specific, but CNET expands that ‘Genachowski hopes to balance “a weak Title I and a needlessly burdensome Title II approach,”‘ which helps a bit. Senators Waxman and Rockefeller are urging Genachowski to act, perhaps providing a bit of political cover in what promises to be a lobbying scrimmage. #

At issue is Comcast’s throttling or blocking of BitTorrent traffic, a practice which has been the subject of litigation and a Cease and Desist order from the FCC. That C&D was ruled invalid by the U.S. Court of Appeals for the D.C. Circuit, which ruled in a unanimous court decision that Congress has not authorized the FCC to regulate a service provider’s network management practices. #

So how does network neutrality relate to network management? Comcast justified blocking BitTorrent traffic for network management reasons, but opponents of the practice accused the cable provider of trying to inhibit the download of movies and other programming. #

(Comcast is not the only service provider to block specific types of traffic. In 2005, Madison River Communications was accused by Vonage of blocking VoIP traffic, presumably for commercial and competitive reasons.) #

Robert McDowell summarizes the history of Internet regulation here. Part of the challenge Genachowski faces is having to build a position between ‘Title I’ and ‘Title II’ in a world where those distinctions make little sense. Today, due to the evolution of the structure of the Communications Act, nearly-identical services are treated differently depending on who provides the service or on what platform it’s provided. VoIP is regulated differently than landline or cellular voice services. Television services provided by telephone companies are not regulated the same as the same service provided by a cable company. #

Yet all these services – television, telephone, and Internet access – are increasingly carried over IP-based networks, and the nation is increasingly ditching wireline telephones for wireless and VoIP. In the foreseeable future your cell phone will join your landline phone (if you still have one) in losing its circuit-switched capabilities, and any call you dial will be carried over an IP-based datalink. Your television programming will enter your home via IP packets, and even the notion of “TV channels” will eventually go away in the non-broadcast world. #

The current text of the Communications Act doesn’t reflect this reality – it continues to treat ‘Telephone companies’ and ‘Cable companies’ differently, and make distinctions based on network architecture. Congress is unlikely to overhaul the act in the near future, so Genachowski is forced to dance on the head of a pin. In addition, the FCC’s policy goal of expanding broadband access is also going to require changes to the Universal Service Fund, the language of which is stuck in the wireline world. #

The people of the United States needs access to high-speed broadband providing voice, video and Internet access to be competitive. They need this access to be provided by competitive, profitable service providers, both wireless and facilities-based. Those companies need a regulatory regime that is service-centric, which doesn’t make distinctions based on a company’s history or choice of equipment. And service providers should be obligated by that regulatory regime to carry users’ traffic on a content-neutral basis, while still retaining the ability to manage traffic (and yes, to sometimes shape the traffic if that shaping is based on traffic characteristics, not content). #

That should be a piece of cake, shouldn’t it? #

So I’m looking forward to seeing what comes out today, but recognize that it will be a small step on a long journey. Julius Genachowski has the opportunity to work with Congress to bring our communications regulations, as well as the expectations we place on service providers, into the 21st Century. I hope he succeeds. #

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