Lately, the FCC has found itself in a tricky position with regards to two of its biggest goals: getting broadband internet to more Americans and ensuring the web remains an open platform for all users.
An early April decision U.S. Court of Appeals for the District of Columbia ruled that the FCC did not have the authority to issue its August 2008 order against Comcast, which reprimanded the cable giant for interfering with internet traffic. The ruling threw into question the Commission’s ability to have a say over pretty much all aspects of the internet. From that point forward, Internet Service Providers would be free to block, interrupt or degrade lawful content, services or websites without repurcussion. It also meant that much of the FCC’s National Broadband Plan — a Congressionally-mandated set of proposals to bring affordible high-speed internet service to more people — could not be implemented.
We at FMC think that both of the FCC’s goals are important.
Net neutrality — the principle that protects the open internet — lets all artists compete on a level playing field with the biggest companies. It protects free expression, is a powerful engine of innovation and is actually the way the web was designed.
Expanding broadband service would give musicians and arts groups in underserved communities access to an increasingly critical technlogy. It’s clear that musicians care about these issues. Check out what Damian Kulash of OK Go, Erin McKeown, R.E.M., stic.man of Dead Prez and more recently told the FCC about how they use the internet in their own lives and careers.
In the wake of the Comcast decision, the FCC had a few options. One would be to do nothing. With America slipping further and further behind in broadband access, speed and adoption, that’s probably not a good idea. And let’s not forget about what the open internet means to to free expression, innovation and entrepreneurship.
The second option for the FCC would be to go with previous legal assumptions of “ancillary authority” and let the courts decide outcomes on a case-by-case basis. That doesn’t seem lke the smartest move, espcially considering the Comcast ruling.
The path the FCC ultimately chose, which has been called the “third way,” gives the Commission the best shot at accomplishing its goals.
On July 18, the FCC moved forward with it’s plan to place portions of broadband delivery service under a section of the Telecommunications Act known as Title II. This would let them fix a mistake made in 2002 when they decided to reclassify broadband as an “information service” as opposed to a “telecommunition service.” That maneuver effectively crippled competition in the broadband marketplace and made it difficult to protect consumers from wacky ISP behavior. Like when AT&T censored a Pearl Jam concert webcast because singer Eddie Vedder made a couple of criticisms of then-president George W. Bush.
According to FCC Chairman Julius Genachowski, “the third way approach was developed out of a desire to restore the status quo light-touch framework that existed prior to the court case.” Meaning, the FCC will only apply the regulations necessary to preserve the open internet and get the National Broadband Plan off the ground.
In a 3-2 vote among Commissioners, the FCC decided to open a public proceeding aimed at hearing from all stakeholders. If you use the internet, that’s you.
Here’s what the Notice of Inquiry wants to know:
- Whether the Commission’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” under which the Commission would reaffirm that Internet content and applications remain generally unregulated under Title I of the Communications Act; identify the Internet connectivity service that is offered as part of wired broadband Internet service as a telecommunications service; and 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.
If that seems confusing, don’t worry — we’ll explain it a bit further in upcoming posts. For now, you should know that comments are to be filed at the FCC site in GN Docket No. 10-127. The deadline for filing is July 15, 2010, with reply comments due on August 12, 2010.