Litigation likely as FCC tries to reclassify broadband, Global Medley suggests

A research firm studying the Federal Communications Commission’s plans to reclassify broadband services in order to lightly regulate them said broadband providers are likely to highlight concerns that any reclassification could impact job creation and investment. Medley Global Advisors L.L.C. said litigation likely will follow the agency’s announcement last week that it is seeking comment on a plan to lightly regulate broadband services by moving them to the Title II group.
“FCC Chairman Julius Genachowski now has the unwavering political cover he needs to enact by year’s end or early 2011 a middle-ground approach using a deregulatory Title II common carrier framework for broadband oversight. Even if approved by the Democratic-led FCC within that time frame, the controversial initiative opposed by broadband operators and Republicans is likely headed for a train wreck that ties up broadband regulation in years of litigation before policy is clarified,” Medley said.
The FCC introduced what it is calling a third option for regulating broadband services and is seeking comment on the matter. The plan is in response to a ruling last month that the FCC lacks 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 ruling is a blow for net-neutrality proponents and could impact the National Broadband Plan recently submitted to Congress.
“Many have asked about the FCC’s next steps in view of the recent decision in the Comcast case,”Genachowski said in introducing the concept. “The goal is to restore the broadly supported status quo consensus that existed prior to the court decision on the FCC’s role with respect to broadband Internet service.”
The FCC said its narrow approach would:
• Recognize the transmission component of broadband access service as a telecommunications service;
• Apply only a handful of provisions of Title II that, prior to the Comcast decision, were believed to be within the commission’s purview for broadband;
• Simultaneously not apply sections of the Communications Act that are unnecessary and inappropriate for broadband access service; and
• Put in place boundaries to guard against regulatory overreach.