The FCC’s Third Way

In the wake of the Comcast decision, the FCC today announced its “Third Way” framework towards regulating broadband.
Statement by Chairman Genachowski, The Third Way: A Narrowly Tailored Broadband Framework:

“The consensus view reflects the nature of the Internet itself as well as the market for access to our broadband networks. One of the Internet’s greatest strengths—its unprecedented power to foster technological, economic, and social innovation—stems in significant part from the absence of any central controlling authority, either public or private. The FCC’s role, therefore should not involve regulating the Internet itself.
“Consumers do need basic protection against anticompetitive or otherwise unreasonable conduct by companies providing the broadband access service (e.g., DSL, cable modem, or fiber) to which consumers subscribe for access to the Internet. It is widely accepted that the FCC needs backstop authority to prevent these companies from restricting lawful innovation or speech, or engaging in unfair practices, as well as the ability to develop policies aimed at connecting all Americans to broadband, including in rural areas.”

In more detail, FCC General Counsel Austin Schlick discusses A Third-Way Legal Framework For Addressing The Comcast Dilemma

Specifically, the Commission could implement the consensus policy approach—and maintain substantively the same legal framework as under Title I—by forbearing from applying the vast majority of Title II’s 48 provisions to broadband access services, making the classification change effective upon the completion of forbearance, and enforcing a small handful of remaining statutory requirements. As few as six provisions could do the job:

  • Sections 201, 202, and 208. These fundamental provisions collectively forbid unreasonable denials of service and other unjust or unreasonable practices, and allow the Commission to enforce the prohibition.
  • Section 254. Section 254 requires the Commission to pursue policies that promote universal service goals including “[a]ccess to advanced telecommunications and information services . . . in all regions of the Nation.
  • Section 222. Title II requires providers of telecommunications services to protect the confidential information they receive in the course of providing service. These protections are another part of the consensus policy framework for broadband access.
  • Section 255. Telecommunications service providers and providers of telecommunications equipment or customer premises equipment must make their services and equipment accessible to individuals with disabilities, unless not reasonably achievable.

Instead of reclassifying all ISP internet access activities as telecommunications services, the Commission seeks to narrowly target only the transmission of data as a telecommunications service. All of the information processing facilities that ISPs may offer (like e-mail or web hosting services, for example) would remain classified as information services. But the commission would be able to regulate if a service provider was using its network to unfairly discriminate against competitors to its own information services.