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FCC's Pai Says Agency Should Close Broadband Reclassification Docket

Wednesday, October 24, 2012
By Paul Barbagallo

The Federal Communications Commission should close a docket it opened in 2010 to consider regulating broadband internet access service as “common carrier” service under Title II of the Communications Act, FCC Commissioner Aji Pai said.

Delivering remarks at an event sponsored by the Communications Liberty and Innovation Project Oct. 16, Pai said closing the docket--known as the “Title II reclassification” docket--would send signals that the FCC has no intention of applying a “Back to the Future” regulatory approach to the internet.

“Congress, of course, must decide how--and when--to revise the Communications Act,” Pai noted in his remarks. “But absent direction from Capitol Hill, it is up to the commission to administer and interpret the Act as it is. When it comes to investment in IP infrastructure, the big question is how these services should be regulated, if at all. The text of the Communications Act doesn't provide clear guidance, and thus far the FCC has not supplied a definitive answer. Firms facing major investment decisions want to know how they are going to be regulated. And if they don't get an answer, they will be reluctant to make long-term financial commitments.”

The controversy surrounding the docket 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 Comcast Corp., leaving the agency's long-running effort to adopt network neutrality regulations in question.

Demise of the 'Third Way'
Faced with new legal uncertainty, FCC Chairman Julius Genachowski proposed reclassifying broadband services under Title II. Under the act, the FCC has limited authority over “information services,” which broadband is now classified as, but has vast powers to regulate “telecommunications,” “cable,” and “commercial mobile radio” services. As part of Genachowski's plan, dubbed the “Third Way,” the commission would have reclassified all high-speed internet access services--whether provided via telecommunications, cable, or mobile--under the more-stringent Title II, but only the “transmission” component; the proposal would not have affected rates or content.

The chairman ultimately decided to scrap the plan after telephone companies, cable operators, and wireless carriers vehemently protested. The FCC opted for a different legal approach, voting in December 2010 to enact net neutrality rules based largely on 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.” The end result meant that internet services providers would not be classified--technically speaking--as common carriers.

That decision is now being appealed, which some industry observers and tech-sector analysts have said is the reason the FCC has kept the docket open. If the D.C. Circuit Court overturns the FCC's decision, the agency could conceivably resume work to reclassify broadband under Title II.

IP Transition Task Force Envisioned
Speaking broadly, Pai said this “silo” approach to regulation--treating telecommunications, cable, and wireless companies differently--is no longer working.

“Voice, video, and data are quickly becoming just packets of information carried on the same networks,” Pai said. “Cable operators offer phone and internet services. Telecommunications carriers promote video service. Voice over Internet Protocol providers sell voice service and video teleconferencing. Companies like Netflix [Inc.] use the internet to deliver video service. And wireless providers, once known for selling phones the size of a brick, let ever more mobile consumers watch videos, listen to music, play games, and occasionally make a call, all on the go.”

Posing other solutions, Pai said the FCC should create an IP transition task force to help the agency modernize regulations for an all-IP world.

“We need to adopt a holistic approach to confronting this challenge instead of addressing issues on a piecemeal basis as they happen to pop up,” he said.


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