FCC moves ahead with broadband regulation inquiry : 3-2 vote falls along party alliances

FCC Commissioner Michael Copps – who has served on the Federal Communications Commission since 2001 – took today’s FCC meeting on developing a framework for broadband regulation to vindicate himself from the last decade of decisions at the commission, where Copps was often in the minority.
In the end, the FCC voted 3-2 to proceed with the Notice of Inquiry to develop a framework for regulating broadband services. The Democratic majority voted in favor of the NOI. Initial comments are due July 15 and reply comments are due Aug. 12. The NOI asks for comments on whether the FCC should continue to regulate broadband under Title 1 regulations; whether the agency should pursue Title 2 authority, a light regulatory touch often referred to as the “third way” or any other ideas of how to regulate the Internet.
The NOI comes as the result of the U.S. Court of Appeals’ ruling in April that the FCC lacked the authority to demand that Internet service providers like Comcast Corp., have to offer equal access to anyone who wants to connect to their network. The case dates back to 2007, when Comcast started blocking some peer-to-peer networking applications that it said consumed too much network bandwidth. Some opponents believed Comcast was degrading traffic from BitTorrent because it competed against Comcast’s on-demand video offering. Two net-neutrality proponents, Public Knowledge and Free Press, complained to the FCC that the ISP shouldn’t be able to decide which applications should run on the network. Comcast later complied with the FCC recommendations but pursued the case in court.
In this morning’s meeting, Copps scorned how the FCC has not regulated broadband services to the detriment of consumers and to the pleasure of a few big players “who never liked the telecommunicatins law passed by Congress” and a previous commission willing to sacrifice the public interest. “Throw into this bubbling cauldron of trouble one subsequent agency decision after another to grant big industry players forbearance from their legal requirements to promote competition and consumer choices and you begin to get the picture of how we spent the bulk of the past decade around here.”
In closing, he said that the commission should not bow to a few powerful companies whose triple play includes slash the FCC’s broadband authority, gut the National Broadband Plan and kill the open Internet.
FCC Commission Mygnon Clyburn, in voting for the NOI, said wireless services are subject to a nearly identical set of regulations similar to the “third way” proposal and has thrived “under a parallel paradigm.”
Commissioner Meredith Attwell Baker dissented on the NOI, saying that even initiating the proceeding creates significant consequences. “This is the rare case where opening a proceeding creates so much regulatory uncertainty” that it harms investment potential, she said. Further, Baker said she is worried that the outcome of the NOI has been pre-judged and citing the following statements:
–Genachowski already publicly supported the third-way proposal;
— The FCC failed to say that broadband deployments in the U.S. were successful, despite findings that 80% of markets had access to more than one provider;
–Failed to find the wireless marketplace competitive;
–And led a press release with a title that 80% of people don’t know their Internet speeds instead of the finding that 91% were satisfied with their service.
For his part, Genachowski said he is keeping an open mind and doesn’t have a specific timeline for next moves after comments are received on the NOI.