FCC authority over broadband regulation in flux

Kate Gerwig
03 May 2010
00:00
 
How did the FCC resolution in 2005 sort out the broadband sharing issue?
 
Nolle: The FCC came up with a complicated definition that said broadband internet was an information service with a telecommunications component. By doing that, the FCC effectively [held] the internet and broadband [as] not subject to the Telecom Act because the FCC doesn't regulate information services. Therein lies the problem.
 
The court decision was about P2P traffic management, so why is the discussion all about net neutrality?
 
Nolle: When the FCC put its net neutrality principles together, it presumed it had vague statutory rights to enforce them, but the recent court order proved that those statutory rights do not exist, which means that net neutrality regulation can't exist under current law. The ruling didn't mention net neutrality, but the traffic management ruling was based on the same assumption of authority as the FCC used to justify its net neutrality position. The 2005 net neutrality principle was designed to prevent the incumbent carriers from using their market strengths unreasonably.
 
Is the cable industry affected by the same regulations in terms of broadband infrastructure?
 
Nolle: The FCC made a similar ruling for cable providers, so finally both sources of broadband infrastructure were subject to the same regulations and had immunity from unbundling and sharing their infrastructure. So in 2005, the US suddenly had a rapid acceleration in broadband deployment.
 
How do you sum up the FCC's problem and what can be done about it?
 
Nolle: The FCC is now in a situation where the fundamental balance it struck in 2005 has been broken because the net neutrality part of that balance is no longer enforceable. So the FCC has three basic choices:
 
It can do nothing and assume that many of its principles could be enforced by a competitive market, which is not necessarily a dumb choice;
It can go to Congress, which is a little bit like walking into a prison yard and asking someone to help you change your tire -- the consequences could be dire;
It can reclassify broadband access as a telecommunications service that can be regulated, rather than its current classification as an information service, because broadband access serves more than one service at the other end.
 

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