FCC Chairman Julius Genachowski did not say whether he supports classifying broadband service as a Title II telecommunications service to clarify the FCC's authority over insuring an open and accessible Internet, but he said he does not agree that the commission lacks authority under the Title I information services regulatory regime broadband is currently regulated under.
That came in a Senate Commerce Committee hearing Wednesday on the national broadband plan.
Rep. Senator Mike Johanns (Neb.) said that he read the court case overturning the FCC's BitTorrent decision as preventing the FCC from implementing network neutrality under Title I. "I don't agree with that," said Genachowski. He said he thought the decision found problems with some of the process and that attorneys were hard at work vetting that decision and the FCC's legal path forward.
He said he had not come to any conclusions about where the FCC would find the authority he is confident it has.
Genahowski was pushed by committee some Democrats to change the classification if necessary, while some Republicans warned that was not a good idea, and counseled that the decision of what statutory authority it has was better left to Congress.
"In my judgment, if the FCC were to take the action Chairman Genachowski and his colleagues appear to be considering, reclassifying broadband without a directive from Congress and a thorough analysis of the facts and the potential consequences to investment, the legitimacy of the agency would be seriously compromised," said ranking Republican member Kay Bailey Hutchison.
One Republican who backed the FCC's network neutrality authority was Olympia Snowe (R-Me.), who said the FCC needed to incorporate nondiscrimination principles in its regulatory regime.
Genachowski said that the ramifications of not ensuring Internet freedom was that the U.S. would fall behind in innovation and entrepreneurship. "Preserving what we already have is all we need to do," he said.
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