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Genachowski: Court Decision Notwithstanding, FCC Has the Broadband Power

FCC Chairman Julius Genachowski says that he is confident that the FCC has the authority  to implement the broadband plan, "notwithstanding the decision last week in the Comcast case."

That case was a D.C. federal appeals court ruling last week that the FCC had not sufficiently tied its smackdown of Comcast network management to statutory authority. The confident assertion of authority nonetheless is from the chairman's prepared testimony for a Senate Commerce Committee hearing on the broadband plan, a copy of which was obtained by B&C.

Genachowski plans to tell the legislators that whatever flaws in the actions or reasoning before the court in that case, the commission still has authority in the Communications Act to "reform universal service to connect everyone to broadband communications, including in rural areas and Native American communities; help connect schools and rural health clinics to broadband; take steps to ensure that we lead the world in mobile; promote competition; support robust use of broadband by small businesses to drive productivity, growth, job creation and ongoing innovation; protect and empower all consumers of broadband communications, including thorough transparency and disclosure to help make the market work; safeguard consumer privacy; work to increase broadband adoption in all communities and ensure fair access for people with disabilities; help protect broadband communications networks against cyber attack and other disasters; and ensure that all broadband users can reach 911 in an emergency."

The big question, and one that will almost certainly be asked during the hearing, is whether the FCC will need to classify broadband under the tighter common carrier regulations of Title II telecommunication service or can find that authority within the current Title I information service classification.

There is a difference in opinion on that issue, pointedly made Tuesday (Apr. 13) by AT&T, which says Title II classification is unnecessary and counterproductive, and the Open Internet Coalition (Google, eBay, Sony, Public Knowledge, Free Press), who argue that Title II classification is what the FCC will need to establish the clear authority to implement much of the broadband plan, including privacy, access and universal service elements.

"I can assure the committee that our actions will be rooted in a sound legal foundation, designed to promote investment, innovation, competition, and consumer interests," Genachowski planned to tell the committee.