Broadband Legal Battles Loom

A legal battle looms on the horizon after Federal Communications Commission Chairman Julius Genachowski released plans today on how the agency would fight to restore regulatory powers over the Internet.

His statement follows the D.C. Circuit's Comcast v. FCC ruling last month, which stated that the commission did not have the authority to stop Comcast from interfering and discriminating against its subscribers' use of peer-to-peer networking, or file-sharing between networks, without the need of a server.

The agency hopes to overturn the ruling, which chips away at the authority that it needs to extend broadband nationwide. "The goal is to restore the broadly supported status quo consensus that existed prior to the court decision," Genachowski stated.

• The agency could rely on provisions in the current Communications Act to try to roll out the National Broadband Plan, but this approach has "serious risk of failure in court [and] the concern is that this path would lead the commission straight back to its current situation," Genachowski said.
• Alternatively, it could decide to reclassify broadband services as a telecommunications service. Right now, broadband is considered an information service and not subject to regulation. But this could "subject the providers of broadband communications services to extensive regulations ill-suited to broadband," Genachowski noted.

FCC has decided to go with what it calls "the third way," where it will view the transmission component of broadband access as a telecommunications service, while continuing to treat the rest of it as an information service.

Genachowski has urged his colleagues to seek public comments on this approach. The agency's commissioners, Michael Copps, as well as Robert McDowell and Meredith Baker have stepped into the debate.

More details of this legal route can be found in a statement from General Counsel Austin Schlick.