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Title II Lite: Scalia's Way

FCC Chairman Julius Genachowski
and General Counsel Austin Schlick are calling their Title II Lite approach to
broadband regulation a "third way," but they might as well call it
"Scalia's Way."

In outlining the proposal Thursday
(may 6), Schlick cited Justice Antonin Scalia's dissenting opinion in the Brand
X case, which was the one where the Supreme Court upheld the FCC's classification
of broadband as a Title I information service.

Scalia had argued that the
transmission and computing functions should be treated as two separate
components, and the FCC has decided the minority opinion provides its best path

"Justice Scalia's bifurcated
view of broadband Internet access service is entirely consistent with (although
not compelled by) the Brand X majority opinion," said Schlick in outlining
the proposal. "This course would also sync up the commission's legal
approach with its policy of (i) keeping the Internet unregulated while (ii)
exercising some supervision of access connections.

Under the FCC's proposal, which
net neutrality activists said they expect to be voted on within the next
several weeks, "the provisions of Title II would apply solely to the
transmission component of broadband access service, while the information
component would be subject to, at most, whatever ancillary jurisdiction may
exist under Title I," said Schlick.

Schlick says the commission will
not apply the "vast majority" of the Title II regulations to
broadband access services, with "as few as six" sufficient to do the
job he says.

Those six would cover:
unreasonable denials of service; promoting universal service; protecting
confidential information; and requiring accessibility of equipment, including
customer premises equipment, to the disabled.

Schlick said what would not be
included in the third way is any new unbundling authority, rate regulation or,
likely, mandatory access by unaffiliated ISPs to cable modem service. "The
commission has not taken any action to implement mandatory access to cable
broadband networks," said Schlick, "and a consensus seems to have
developed that it should not be ordered."