Framework for Broadband Internet Service
This Notice begins an open, public process to consider the adequacy of the current legal framework within which the Commission promotes investment and innovation in, and protects consumers of, broadband Internet service. Until a recent decision ofthe United States Court of Appeals for the District of Columbia Circuit, there was a settled approach to facilities-based broadband Internet service,which combined minimal regulation with meaningful Commission oversight. The Comcast opinion, however, held that the Commission went too far when it relied on its “ancillary authority” to enjoin a cable operator from secretly degrading its customers’ lawful Internet traffic. Comcastappears to undermine prior understandings about the Commission’s ability under the current framework to provide consumers basic protections when they use today’s broadband Internet services. Moreover, the current legal classification of broadband Internet service is based on a record that was gathered a decade ago. Congress, meanwhile, has reaffirmed the Commission’s vital role with respect to broadband, and the Commission has developed a National Broadband Plan recommending specific agency actions to encourage deployment and adoption.
These developments lead us to seek commenton our legal framework for broadband Internet service.
The Framework for Broadband Internet Service docket launches an open proceeding on issues related to the future of broadband in America.
On June 17th, 2010 the FCC released the Framework for Broadband Internet Service Notice of Inquiry to seek input on the best legal framework to apply to broadband Internet services—such as cable modem and telephone company DSL services—in order to promote competition, innovation, and investment in broadband services; to protect consumers; and to implement important aspects of the National Broadband Plan. A decision in April by the United States Court of Appeals for the District of Columbia Circuit in Comcast Corp. v. FCC raised serious questions about the Commission’s ability to rely on its current legal framework—which treats broadband Internet service as solely an “information service”—when moving forward on these policy objectives.
The NOI asks questions about three approaches in particular, while also inviting new ideas.
First, the NOI seeks comment on how the Commission could most effectively perform its responsibilities within the current information service classification.
Second, the NOI asks for comment on the legal and practical consequences of classifying Internet connectivity as a “telecommunications service” to which all the requirements of Title II of the Communications Act (the provisions that apply to telephone-type services) would apply.
Finally, the NOI invites comment on a third way modeled on the successful “Regulatory Treatment of Mobile Services” set out in the Communications Act. Under this third way approach, the Commission would: (i) reaffirm that Internet information services should remain generally unregulated; (ii) identify the Internet connectivity service that is offered as part of wired broadband Internet service (and only this connectivity service) as a telecommunications service; and (iii) forbear under authority Congress provided in the Communications Act from applying all provisions of Title II other than the small number that are needed to implement fundamental universal service, competition, and consumer protection policies that have received broad support.