Broadbend

Posted on April 19, 2010

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Editorial

The F.C.C. and the Internet

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Published: April 18, 2010

With the Internet fast becoming the most important communications channel, it is untenable for the United States not to have a regulator to ensure nondiscriminatory access, guarantee interconnectivity among rival networks and protect consumers from potential abuse.

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Yet that’s exactly where the United States Court of Appeals for the District of Columbia Circuit left us all when it said this month that the Federal Communications Commission didn’t have the authority to regulate the Internet — and specifically, could not force the cable giant Comcast to stop blocking peer-to-peer sites.

The decision, in the words of the F.C.C.’s general counsel, Austin Schlick, undermines the agency’s ability to serve as “the cop on the beat for 21st-century communications networks.” It also puts at risk big chunks of the F.C.C.’s strategy for increasing the reach of broadband Internet to all corners of the country and fostering more competition among providers.

Chairman Julius Genachowski said the commission is not planning to appeal the decision, and is studying its options. The F.C.C. could try to forge ahead with its broadband plan despite the court’s decision. Or Congress could give the F.C.C. specific authority to regulate broadband access.

But the court tightly circumscribed the F.C.C.’s actions. And with Republicans determined to oppose pretty much anything the administration wants, the odds of a rational debate on the issues are slim.

Fortunately, the commission has the tools to fix this problem. It can reverse the Bush administration’s predictably antiregulatory decision to define broadband Internet access as an information service, like Google or Amazon, over which it has little regulatory power. Instead, it can define broadband as a communications service, like a phone company, over which the commission has indisputable authority.

The F.C.C. at the time argued that a light regulatory touch would foster alternative technologies and aggressive competition among providers. It assumed that the Internet of the future would be dominated by companies like AOL that bundle access with other services, justifying its conflation of access and information.

And it claimed that it could still regulate broadband access even if it was classified as a service. All it had to do was convince the courts that it was necessary to further other statutory goals, like promoting the roll-out of competitive Internet services. This legal argument did not hold up.

Any move now by the F.C.C to redefine broadband would surely unleash a torrent of lawsuits by broadband providers, but the commission has solid legal grounds to do that. To begin with, the three arguments advanced by the F.C.C. during the Bush years have proved wrong.

Rather than seeing an explosion of new competition, the broadband access business has consolidated to the point that many areas of the country have only one provider. Broadband Internet has unbundled into a business with many unrelated information service providers vying for space on the pipelines of a few providers.

And most persuasively: broadband access is probably the most important communication service of our time. One that needs a robust regulator.

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Posted in: FCC, Internet