FCC authority over broadband regulation in flux

Kate Gerwig
Following a Court of Appeals ruling that basically curbed FCC authority over broadband regulation and net neutrality efforts, the commission basically has three options. Telecom consultant Tom Nolle explains the FCC's choices and the complex chain of events that led to the court decision.
Moving forward with a national broadband plan was already a major topic even before the appeals court ruled that the FCC doesn't have the legal authority to tell service providers how to manage network traffic. Net neutrality and broadband regulation weren't mentioned specifically in the 26-page decision, but the appeals court ruling will affect the national broadband policy debate.
There's a lot of confusion about why the FCC/Comcast case went straight to the US Court of Appeals. Can you explain?
Nolle: There's a pretty broad misunderstanding about the relationship between the FCC and the courts of appeal. The FCC is a quasi-judicial agency that acts as a court of fact in communications matters, sort of like a lower court. So the DC Court of Appeals is the normal path to appeal an FCC ruling. But it is a court of law, not a court of fact. The only thing the appeals court could do was rule whether the FCC had the authority to regulate Comcast's traffic management practices. It decided the FCC acted beyond its authority.
Why is this ruling having such a major effect throughout the telecom industry?
Nolle: When the Telecom Act was passed in 1996, it required the incumbent carriers to share their infrastructure with competitors, but it wasn't clear if they were supposed to share the infrastructure they built as a protected, rate-guaranteed monopoly or any new infrastructure they might deploy later -- like broadband. For nine years after the 1996 Act, the FCC unsuccessfully tried to craft how things like broadband internet were going to be regulated for nine years after the 1996 act so the incumbent carriers didn't find themselves building something at great expense and sharing it with someone who didn't spend anything at all. Because of that period of indecision, the US lagged radically behind the rest of the world in broadband deployment.



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