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FCC Puts Title II NOI on June Agenda

As expected,
FCC Chairman Julius Genachowski announced May 27 that a notice of
inquiry on the FCC's proposal to reclassify broadband as a Title II
service will be on the agenda for the FCC's June
The notice
will ask for comment on the chairman's proposed "third way" path to
clarifying the FCC's broadband regulatory authority in the wake of the
BitTorrent decision, which would be to classify
only the transmission element as a Title II common carrier service, and
then only applying a handful of those regulations while forbearing (i.e., not
applying) the rest. Rather than issuing a separate notice of proposed
forbearance, it will be rolled into the NOI, according
to a source.
The NOI will
also ask for input on the two extremes between which the chairman has said his
approach navigates a middle ground -- that is, "[w]hether the
Commission's 'information service' classification
of broadband Internet service remains legally sound and adequate to
support effective performance of the Commission's responsibilities," or
"The legal and practical consequences of classifying broadband Internet
connectivity as a 'telecommunications service'
to which all the requirements of Title II of the Communications Act
would apply."
A federal
court has ruled the first to be on shaky ground at best, while the
chairman and his general counsel have said they do not want to go the
other extreme of applying all the mandatory access
and interconnection regs to broadband.
and more than 70 Democrats have expressed reservations about the "third
way," suggesting a fourth way would be for the FCC to back off and let
Congress clarify what broadband regulatory
powers it meant for the FCC to have.
The notice
will also seek comment on classification for terrestrial wireless and
satellite broadband delivery of Internet. Those two are broken out
because some have argued that Title III wireless
regs already covers those services.
The FCC's "third way" approach got a shout-out from a pair of legislators who have long pushed for network neutrality.

In a letter to Genachowski that was circulated soon after the announcement of the NOI, Reps. Ed Markey (D-Mass.) and Ann Eshoo (D-Calif.), praised the chairman's proposal as a "tailored, commmonsense" path forward" and one that would allow the FCC to continue its open Internet proceeding.

Markey and Eshoo are co-sponsors of the Internet Freedom Preservation Act, which would legislate a network neutrality/nondiscrimination regime.