Policy Documents

The FCC’s Title II “Lite” (as a Lead Balloon!) & the Looming Broadband Tax

James E. Dunstan –
May 12, 2010

FCC Chairman Genachowski has set forth his vision—a "Third Way"—for overcoming the D.C. Circuit's recent decision in the Comcast case concluding that the FCC lacked jurisdiction for sanctioning Comcast for allegedly blocking subscribers using peer-to-peer software or otherwise throttling bandwidth to heavy users. The Court concluded that the FCC's "ancillary jurisdiction" under Title I of the Communications Act was insufficient authority to step in and regulate Comcast's broadband services. Since then, all of the Washington telecommunications intelligentsia has speculated at the FCC's next move. Now we have it.

Chairman Genachowski's "Third Way" is a form of Title II "lite," where the FCC will reverse its prior decisions dating back decades that declare the Internet and broadband connections "information services," and instead bifurcate the Internet into two segments: the "Internet" itself, and the "connections to" the Internet. Under the "Third Way," the FCC would continue to treat the "Internet" itself (whatever that actually means) as an "information service" (Title I) but declare all connections to the Internet to be "telecommunications services" (Title II). Armed with a ten-page memo from his General Counsel, the Chairman argues that this policy reversal is on sound legal ground and will instantly reverse the "problem" caused by the Comcast decision.

Setting aside the fundamental question of who caused this "problem" (a Federal Court of Appeals concluded that it was the FCC who violated the Communications Act, not Comcast), the Chairman's "Third Way" may turn out to be a third rail, with the real potential for destroying the Internet as we know it.