FCC pursues ‘third way’ to regulate Internet

From the Spring 2010 issue of The News Media & The Law, page 16.

The Federal Communications Commission is trying to re-establish its authority over the Internet in the wake of a federal appeals court ruling in April that cast doubt on whether the commission has the authority to require net neutrality at a time when it is pushing to expand its influence through a universal broadband plan and other initiatives.

After the U.S. Court of Appeals in the District of Columbia ruled in Comcast v. FCC that the commission did not have power under the Communications Act to require Comcast to allow its subscribers to access peer-to-peer networking applications, FCC Chairman Julius Genachowski announced a “third way” to move forward with Internet regulation.

Instead of continuing to rely on the ancillary powers given to the commission or reclassifying the Internet entirely in order to bring it within the commission’s jurisdiction, Genachowski announced a “narrow and tailored” approach that would be “a legal anchor that gives the Commission only the modest authority it needs to foster a world-leading broadband infrastructure . . . while definitively avoiding the negative consequences of a full reclassification.”

Though the commission has called it a third way, the proposal is effectively a less restrictive way for the commission to reclassify Internet services by applying only a “handful” of the existing provisions widely believed to be within its authority.

“The purpose is to reclassify as a legal matter so as to regain legally stable authority but make a very clear statement that the authority is only going to be used for a relatively narrow and widely understood set of interventions,” said Yochai Benkler, co-director at Harvard Law School’s Berkman Center for Internet and Society.

Solidifying its authority over the Internet is a high priority for the commission as concerns that Internet providers will favor certain types of content over others put net neutrality in jeopardy. Though too much regulation could stifle the still-developing industry, no regulation could create access issues for Internet users.

Open Internet advocates say without regulation, broadband providers would be gatekeepers that could give some content preferential treatment. Broadband companies say Internet congestion can lead to slowed connections for users that have purchased high-speed service and they should be able to restrict sites that use large amounts of bandwidth.

In the recent Comcast case, for example, users found out the company was blocking and slowing access to the file-sharing site BitTorrent. The commission censured Comcast in an effort to preserve net neutrality, but a three-judge panel of the appeals court disagreed that the commission had the authority to intervene.

“We begin — and end — with Comcast’s jurisdictional challenge,” the court said in its decision supporting the cable provider.

There are several steps between the commission announcing its proposal and the approach becoming finalized, including a period for public comments. Congress, for example, may decide to take another look at the Communications Act, which has not been altered since 1996. Amending the law would allow legislators to allow for the changes have occurred since the Internet was in its relative infancy.