By Paul Barbagallo
Federal Communications Commission Chairman Julius Genachowski told lawmakers he will consider closing a rulemaking docket that was opened in 2010 to reclassify broadband as a basic utility subject to strict, telephone service-like regulation.
Genachowski, testifying before the House Energy and Commerce Communications Subcommittee Feb. 16 on issues relating to the FCC budget, said no one at the agency has been working on the docket, but it still remains open.
“Why not close it?” asked Subcommittee Chairman Greg Walden (R-Ore.). Genachowki responded: “It is something that we will consider,”and added that the agency has been focused on reforming the Universal Service Fund and intercarrier compensation system.
But Walden pressed further, saying, “You're here, we can consider it now.” Genachowski remained noncommital, saying it is “something I will discuss with my staff.”
The issue has been among the most politically contentious at the FCC and on Capitol Hill. The controversy began in April 2010, when the U.S. Court of Appeals for the District of Columbia Circuit ruled that the FCC had overstepped its authority in applying a portion of the Communications Act to an internet service provider, leaving the agency's long-running effort to adopt network neutrality regulations in question.
Faced with new legal uncertainty, Genachowski proposed reclassifying broadband under Title II of the Communications Act. Under the act, the FCC has limited authority over “information services,”which broadband is now classified as, but has vast powers to regulate telephone utilities and “common carriers.” As part of a plan dubbed the “Third Way,” the commission would reclassify high-speed internet service under the more-stringent title, but only the “transmission” component—not rates or content.
The chairman ultimately decided to scrap the plan after the industry vehemently protested. The FCC opted for a different legal approach, voting in December 2010 to enact net neutrality rules based on Titles II , III, and VI of the Communications Act, as well as Section 706 of the 1996 Telecommunications Act, which directs the FCC to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.”
That decision is now being appealed, which some industry observers and tech-sector analysts say is the reason the FCC has kept the docket open.