If at first you don’t succeed, try, try again — and with a more “diplomatic” approach. That’s the strategy the Federal Communications Commission, which detailed its plans to regulate the Internet via a “third way.”
The FCC’s new, ostensibly softer approach comes on the heels of a U.S. Court of Appeals decision earlier this month, which ruled that the FCC does not have the authority to directly regulate internet providers nor require them to offer equal treatment to all Web traffic. Comcast sued the FCC, arguing that the commission could not force the company to be “net neutral” in regards to the file-sharing program BitTorrent, which Comcast at one point was filtering on its system.
In response, FCC chairman Julius Genachowski announced the “third way” which consists of simply removing ISPs from their current classification in order to “have enough of a legal footing in place to make sure the agency can protect consumers and achieve goals presented in the National Broadband Plan.”
Currently, the FCC categorizes Internet Service Providers (ISPs) as Title 1 “information service.” The classification meant that the FCC lacked the direct authority to regulate these providers. The FCC’s other option, however was to classify ISPs as Title II “telecommunications service,” which internet providers say would bring with it regulatory madness and the same red tape that wireline phone agencies find themselves in.
Genachowski’s “third way” then will be an attempt to run between the two classifications:
The chairman will seek to restore the status quo as it existed prior to the court decision in order to fulfill the previously stated agenda of extending broadband to all Americans, protecting consumers, ensuring fair competition, and preserving a free and open Internet,” the official said.
The confirmation from the FCC comes only hours after two senior Democratic politicians sent a letter to Genachowski saying that imposing Net neutrality regulations on broadband providers such as AT&T, Comcast, and Verizon is “essential.” And Free Press, the liberal lobby group that’s led the fight to hand the FCC more Internet regulatory authority, hastily convened a conference call to warn that Genachowski would be leaving President Obama’s Net neutrality promises unfulfilled.
Net neutrality proponents have bemoaned the recent Appeals Court decision and wish to see a “free and open internet.” But those opposed to interference from the FCC have argued that regulation will only suffocate business and innovation in an area that has thrived without government interference.
Yesterday, one FCC official said Genacoswki was trying to have it both ways, hoping:
to balance “a weak Title I and a needlessly burdensome Title II approach.” Title I refers to lightly regulated information services; Title II refers to heavily regulated telecommunications services, such as legacy telephone networks.
The balancing act between what the FCC has been told it cannot do and what it wants to do, has caused the committee to run over itself more than once. As BetaNews reports:
“The Third Way,” as the FCC now calls it, is a clear effort to defer to US Supreme Court decisions that suggested the FCC has the authority to declare what it does not regulate. As a model for deciding what’s in and what’s out, Schlick refers to the classic dissent of Justice Antonin Scalia in the 2005 Brand X decision. There, Justice Scalia argued that since it doesn’t make much difference to the customer whether he receives service through one route or another, it shouldn’t make much difference to the law, either.
Dancing lightly over the fact that Scalia’s argument was a dissent from the decision, and not actual law, Schlick suggested this morning that the FCC should now embrace an approach that it had vehemently rejected just weeks earlier.
Currently, the “third way” contains only six provisions from Title II regulations, although “the FCC could decide it needs more or less as this process wears on,” according to Engadget.com.
Republicans in Washington rejected the “third way” characterization and accused the Obama Administration of once again seeking to expand the power of government over the private sector. House Republican Leader John Boehner of Ohio said, “Under this job- killing big government scheme, the Obama administration is seeking to expand the power of the federal government.”
Republican FCC Commissioners Rob McDowell and Meredith Attwell Baker issued a joint statement, saying: “This dramatic step to regulate the Internet is unnecessary.”
“It is a stark departure from the long-established bipartisan framework,” they said.