The U.S. Court of Appeals for the District of Columbia Circuit April 6 may have greatly complicated the ability of the Federal Communications Commission to succeed in achieving the goals it set forth in its National Broadband Plan when the court told the agency it had exceeded its authority in instructing Comcast to treat all Internet traffic equally.
In vacating a 2008 FCC Order, the court told the commission it failed to “tie its assertion of ancillary authority over Comcast’s Internet service to any ‘statutorily mandated responsibility.’” For Comcast, the decision means the commission had no right to tell it to stop blocking subscribers from using certain peer-to-peer file-sharing applications. For the commission, however, the decision not only is a setback for its Net Neutrality stance but also may have broader implications.
Hours after the decision was made public, some advocates of Net Neutrality began calling for a reclassification of Internet access service. “The FCC should immediately start a proceeding bringing Internet access service back under some common carrier regulation similar to that used for decades,” said Gigi Sohn, president and co-founder of Public Knowledge, a Washington, D.C.-based public interest group, in a statement posted on the group’s Web site.
The remarkable growth of broadband Internet service over the past decade has been nurtured under the light-handed regulatory approach granted under Title I of the Telecommunications Act. Reclassifying Internet access service under Title II would give the commission greater authority to promote goals like Net Neutrality when regulating companies like Comcast.
However, reclassifying Internet access providers as Title II service providers could prove the undoing of the goals enumerated in the commission’s National Broadband Plan. “The industry may argue that under Title I, ‘We had an incentive to build out our Internet networks. If you bring us under Title II, that takes incentives away by regulating rates and profits,’” said Charles Zielinski, an attorney with Bryan Cave in Washington, D.C., who specialized in communications law. Regulating rates and profits would likely prove to be a major disincentive to investors hoping to cash in on expanding broadband Internet service as envisioned by the FCC plan, he added.
Without such investment, achieving the commission’s goal of 100Mb/s Internet service to 100 million U.S. homes by 2020 may be difficult. Still, in the view of Public Knowledge’s Sohn, folding Internet access service into a common carrier regulatory status does not have to “impose a heavy regulatory burden on the telephone and cable companies.”