The FCC has announced its plan to reclassify Internet broadband access and services as common carrier services under Title 2 of the Communications Act, as part of an effort to implement "network neutrality," the prohibition of discrimination by Internet service providers (ISPs) to block access to certain Web sites and services.The reclassification announcement comes exactly one month after a ruling by the U.S. Court of Appeals for the District of Columbia Circuit threw out the FCC's decision to regulate Comcast's online management. The FCC will be taking a hybrid-like approach to its reclassification efforts: broadband transmissions will be subject to Title II regulations, but broadband computing services will mostly remain under Title I (an information service). What is important to note about the planned broadband transmission regulations is that imposition of Title II provisions will be limited, mostly to ensure "network neutrality." Chairman Genachowski tried to make it clear that it is the intention of the FCC not to "regulate the Internet, including Web-based services and applications, e-commerce sites, and online content."
According to Austin Schlick, FCC general counsel, only the following Title II provisions are likely to be applied to broadband transmission services: Sections 201, 202, and 208 which "forbid unreasonable denials of services and other unjust or unreasonable practices."; Section 254, the Universal Service Provision; Section 222, which would require protection of confidential information ISPs receive while providing service; and Section 255, requiring service and equipment accessibility to the disabled, unless not "reasonably achievable."
Initial reaction has been positive on the part of most consumer groups and one of disappointment by cable companies. Reaction by the common carriers (phone companies such as AT&T and Verizon) has been mixed. As the Internet gradually replaces the traditional public switched telephone network (PSTN) as the means to transmit voice communications, it would seem natural that the FCC should want to exert a greater level of monitoring and control, though some may see this as only the first step towards expansion of their regulatory powers over all things related to the Internet. This could inhibit future investment in broadband infrastructure and services, as well as affect existing investment. Federal court challenges to the FCC decision are likely, leading to a time of uncertainty (perhaps years) before the final outcome.
