Federal Communications Commission’s Broadband Plan

The court’s decision to overturn the Federal Communications Commission’s sanctioning of

Comcast’s management of its Internet traffic for lack of mandate is a major blow to the agency’s
net neutrality efforts, but the FCC is plodding ahead with the plan.

The FCC recently scored support from the chairman of the powerful Senate Commerce, Science
and Transportation Committee. Its chairman, Senator and West Virginia Democrat Jay
Rockefeller, urged FCC chairman Julius Genachowski to push for more authority to enforce net
neutrality.

Rockefeller assured that if there was a need to rewrite the law to give the FCC more teeth in
policing traffic management by Internet service providers, he will “take that task on.” Both
Rockefeller and Senator Byron Dorgan, a North Dakota Democrat, believe that the FCC should
have an authority to regulate broadband and that the agency should act right away.

In a 3-0 vote on April 6, the U.S. Court of Appeals for the District of Columbia Circuit ruled that
the FCC did not have the authority when it censured Comcast’s blocking of peer-to-peer
application called BitTorrent in 2008.

Comcast explained that it slowed down file transfers to prevent network traffic congestion.
Consumer groups were buoyed by the FCC’s interference, however, saying that the move would
ensure unrestricted Web traffic.

The court’s decision got consumer rights advocates and bloggers alike worried that it would be
the end for net neutrality efforts. The decision is a big slap in the face of consumers because it
undermines the legal stance the FCC had adopted to prevent Internet service providers’
interference in customers’ communications.

The FCC, however, tried to downplay the blow. In a statement, chairman Genachowski said:
“The court decision… does not change our broadband policy goals, or the ultimate authority of
the FCC to act to achieve those goals. The court did not question the FCC’s goals; it merely
invalidated one technical, legal mechanism for broadband policy chosen by prior Commissions.”

According to analysts, the FCC in fact has several options to try to turn the situation around in its
favor: It could appeal the U.S. Circuit Court’s decision or turn to Congress to acquire the
necessary powers to regulate broadband. Consumer groups are not happy with the latter option as
getting a major law through Congress could take at least a year.

That leaves the FCC with the last but perceived to be the most favorable option: reclassify
broadband ISPs as common carriers so these will be directly under the commission’s control.

The first option carries risks of further demoralizing the FCC’s net neutrality efforts should there
be another loss. As for the second option, consumer groups doubt the possibility that Congress
would be able to pass a bill giving the FCC additional powers considering other national
priorities that are expected to take center stage.
The third option appears to be the easiest and fastest way to eliminate all doubts as to the FCC’s
authority to regulate broadband, but it’s expected to face tough resistance from Internet service
providers.

Right now, however, the FCC remains noncommittal as to the possibility of reclassification.
Genachowski said he is still weighing the legal implications of the move.

Leonor Albino writes for <a href="http://www.schooleymitchell.com/index.html">Schooley

Mitchell Telecom Consultants</a>, North America's largest independent telecom consulting
company. 888.311.6477