FCC chairman Julius Genachowski confirmed Wednesday that the network neutrality order he is circulating for a Dec. 21 vote is based in existing Title I authority.
"The proposal is grounded in a variety of provisions of the communications laws, but would not reclassify broadband as a Title II telecommunications service," he said in a brief speech on the order. "I am satisfied that we have a sound legal basis for this approach."
The chairman was less sure last spring, when he pitched a "third way" approach of reclassifying broadband access under some Title II regs, suggesting that was necessary because a defense of net neutrality under Title I was likely to fail in the courts.
Senior FCC officials speaking on background said they have had time to reflect since then, and now feel they have solid legal footing drawing authority from various sections of the Communications Act under the broad mandate of protecting an open Internet.
The chairman also confirmed that the proposal to expand and codify network neutrality guidelines would apply only to transparency and non-blocking provisions to mobile broadband.
"The proposal takes important but measured steps in this area -- including transparency and a basic no blocking rule," he said. "Under the framework, the FCC would closely monitor the development of the mobile broadband market and be prepared to step in to further address anti-competitive or anti-consumer conduct as appropriate."
Genachowski also said that "the proposed framework also recognizes that broadband providers must have the ability and investment incentives to build out and run their networks."
That includes reasonable network management, as well as usage-based billing, according to senior FCC officials.
The chairman did not mention usage-based pricing in his speech, but the officials said there was a level of comfort with that approach that was consistent with a level playing field, so long as there was transparency and consumers were well informed.
They pointed out that there is already usage-based billing---the iPad for example--and that the order simply clarifies the level of comfort with that approach, without the FCC trying to pick winners or losers in the marketplace.
To read the chairman's speech in full, go to http://www.openinternet.gov/speech-remarks-on-preserving-internet-freedom-and-openness.html.
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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