The FCC Stakes Out a Middle Ground

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Why All the Hype Over Net Neutrality?

Learn what net neutrality is all about and why it's so important.

It's been quite a week in the war of words between the Federal Communications Commission and whoever will listen to it on net neutrality.


Early in the week, the Washington Post posted a story that suggested the FCC would take no action to reimpose its control over ISPs in the wake of its loss to Comcast at the Court of Appeals for the District of Columbia Circuit.


I speculated that the statements were part of an FCC trial balloon. Today, the commission released its official position, which it labels as a "third way." The approach, which will be opened to the comment process, essentially is to partially reclassify broadband under Title II-the regulatory scheme that oversees traditional phone companies-to the extent necessary to restore the power that it lost via the Comcast decision.


This is how the AP put it:


FCC Chairman Julius Genachowski said Thursday that the commission will seek to regulate broadband connections as a telecommunications service subject to "common carrier" obligations to treat all traffic equally. But it will refrain from imposing other burdensome obligations.


It almost seems that the FCC is grasping at a way to squelch the most damaging parts of the Comcast decision. Whether the power telecommunications industry is willing to let this happen is a big question. Barron's Eric Savitz summed it up nicely as well:


FCC Chairman Julius Genachowski today issued a 6-page statement that calls for a "third way," applying just a narrow portion of the Title II rules covering telecom services to broadband. The goal, he says, "is to restore the broadly supported status quo" before the recent court decision that found the FCC does not have the authority to enforce its position on net neutrality on the carriers.


The third way, then, is to control the pipes-many tools, of course, are capable of helping to do this -- without seeking to influence the business that is done on them. CNET's Marguerite Reardon pointed out that the FCC is being circumspect:


The chairman clearly stated that the agency is not looking to regulate broadband pricing or require broadband infrastructure owners to share their network elements with competitors.

The question is whether this is a practical solution. My initial reaction is that this is going to be a tough sell. Labeling something as the "third wave" tacitly acknowledges that there will be two unhappy sides. Unhappy parties in regulatory initiatives, especially those with money, do a few things, including increase lobbying expenditures, stall and litigate.


In this case, there is every reason to believe that the Comcasts and Verizons of the world will not be satisfied with a half Title I and half Title II status nor, after winning in court, are they likely to think that it is deserved.