- On May 6, 2010, FCC Chairman Julius Genachowski announced a “Third Way” approach to regulating broadband transmission facilities. After outlining the two conventional options of using Title I and Title II, the Chairman adopted the Third Way. Calling it “narrow and tailored,” Chairman Genachowski said the approach would recognize only the transmission component of broadband access service as a telecommunications service, and apply only a handful of provisions of Title II that, prior to the Comcast decision, were widely believed to be within the Commission’s authority for broadband. The approach also requires the Commission to forbear from applying many provisions of Title II that it deems unnecessary and inappropriate for broadband access service. The Chairman stated that he has adopted this approach because it rests on sound legal footing and will restore the status quo after the Comcast decision. This Third Way approach will soon be published in a notice of rulemaking in which the FCC “will seek comment regarding the Title I and Title II options … [and] will seek input on important questions such as whether wired and wireless broadband access should be treated differently in this context….” The Chairman’s announcement is available here.
- Also on May 6, Austin Schlick, FCC General Counsel, released a more detailed explanation of the “Third Way” approach to correspond with the Chairman’s announcement. The Third Way will rely on six sections of Title II (Sections 201, 202, 208, 222, 254, and 255) in order to “sync up the Commission’s legal approach with its policy of (i) keeping the Internet unregulated while (ii) exercising some supervision of access connections.” Sections 201, 202, and 208 will “collectively forbid unreasonable denials of service and other unjust or unreasonable practices, and allow the Commission to enforce the prohibition.” Section 254 will “promote universal service goals.” Section 222 will “require providers of telecommunications services to protect the confidential information they receive in the course of providing service.” Finally, Section 255 provides that service providers must “make their services and equipment accessible to individuals with disabilities, unless not reasonably achievable.” The FCC will then forbear from applying other sections of Title II. Schlick, like Chairman Genachowski, stated that this Third Way approach as based on a strong legal foundation. Schlick’s announcement is available here.
- FCC Commissioners Robert M. McDowell and Meredith Attwell Baker released a joint statement on the Third Way approach to regulating broadband, calling it “neither a light-touch approach nor a third way.” The Commissioners criticized any attempt to regulate the Internet and said the FCC has ample authority to achieve the goals of the National Broadband Plan even after the Comcast decision. The statement is available here.
- Commissioner Michael J. Copps also released a statement on the Third Way approach, stating that he “welcome[s] this step toward bringing broadband back under the Title II framework where it belongs.” Commissioner Copps also warned that he is concerned that the FCC not forbear from too much regulation as technology quickly changed. This statement is available here.
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- Arent Fox LLP
- Ross A. Buntrock , Jonathan E. Canis , Alan G. Fishel , Michael B. Hazzard , Stephanie A. Joyce and Jeffrey E. Rummel
- May 10 2010
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