FCC chairman Julius Genachowski just announced news to cheer open-Internet advocates: a new policy that stands up for the principle of network neutrality and recognizes the broadband Internet for what it obviously is: the essential telecommunications service of the 21st century.
In regulator-speak, Genachowski's plan says that broadband transmission will be reclassified as a "Title II" service - a telecommunications service of the type subject to close oversight since the FCC was established in the 1930s. Under the Bush administration, the FCC declared broadband offerings to be "Title I" data service, subject to much looser regulation. Although the plan also promises to carefully limit the regulators' role - the buzzwords are "narrowly tailored" and "third way" - it has predictably been denounced as a "power grab."
This fight came to the fore because of Comcast's appeals-court victory last month in the BitTorrent case. Bush's FCC set up a framework so loose that the appeals court said it couldn't even uphold its own "open Internet" principles, which the FCC claimed authority to impose even on a data service. But when FCC then took Comcast to task for surreptitiously blocking users of file-sharing software such as BitTorrent, the court said no dice - not under the rules established by a commission majority torn between support for neutrality and antagonism to regulation.(You can read my recent column about the case here.)
You can find Genachowski's statement by clicking here. He says that the new rules would apply only to "the transmission component of broadband access service," and that the FCC will formally promise stay away from rules "that are unnecessary and inappropriate for broadband access service."
In other words, Genachowski is trying to thread a needle. He wants to make plain to the public that regulators can and will enforce reasonable net-neutrality principals against network owners who want to manage the broadband Internet like a private toll road, potentially favoring some people's or companies' traffic over others' in ways that distort the market. At the same time, he wants to signal businesses and entrepreneurs that the FCC will stay away from needless interference in a technology that has been a tremendous engine for growth.
To that end, the Genachowski-led commission also plans to push forward with its visionary National Broadband Plan, which sees wired and wireless broadband networks as the railroad, highway, and telephone networks of the 21st century: essential public services - whoever owns and operates them - that don't just connect the country but that will provide a framework for robust economic growth in the decades ahead. (It's not clear yet whether today's framework will directly affect wireless carriers.)
We'll soon see how the network owners and open-Internet advocates respond. The FCC's new plan probably won't satisfy net-neutrality purists, and my hunch is that it will provide loads of billable hours for the telecom companies' lawyers. (See Joe DiStefano's blog passing on a warning about "chaos" for Comcast, Verizon and Google - even though Google, which doesn't own a network, has been a staunch proponent of net neutrality. At a news conference this afternoon, general counsel Austin Schlick said, "A provider of Internet content would remain just as unregulated after this regulation as they are today.")
The bottom line is that it never made a lick of sense to say that broadband isn't a telecommunications service. It's the essential telecommunications service of the 21st century. You wouldn't be reading this here if it weren't.
Want to read more about this?
Here's the FCC general counsel's explanation: "A Third-Way Legal Framework for Addressing the 'Comcast' Dilemma."
Here's Genachowski's statement: The Third Way: A Narrowly Tailored Broadband Framework.
The Open Internet Coalition says it "applauds FCC announcement."