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Cable Technology Feature Article

May 06, 2010

FCC Addresses 'The Comcast Dilemma'

By Paula Bernier, Executive Editor, IP Communications Magazines

FCC (News - Alert)Chairman Julius Genachowski has unveiled his response to the Comcast court ruling, which saw the U.S. Court of Appeals for the District of Columbia Circuit rule in the cableco's favor in a lawsuit it filed against the FCC. In the suit, Comcast (News - Alert)challenged the FCC, saying the agency lacked the authority to stop it from taking steps to manage bandwidth-hogging traffic (in this case involving BitTorrent (News - Alert)peer-to-peer transmissions). And Comcast won the case.

Not surprisingly, that set off a hail storm of debate. Pundits opined that the FCC basically had two ways to go in light of the Comcast ruling. It could either, as Genachowski now puts it, continue relying on Title I 'ancillary' authority, and try to anchor actions like reforming universal service and preserving an open Internet by indirectly drawing on provisions in Title II of the Communications Act (e.g., sections 201, 202, and 254) that give the Commission direct authority over entities providing 'telecommunications services.' Or, the commission could reclassify Internet communications as a 'telecommunications service,' restoring the FCC's direct authority over broadband communications networks but also imposing on providers of broadband access services dozens of new regulatory requirements.

Genachowski was not altogether comfortable with either of those options. So instead he wants to go with a hybrid approach to broadband regulation. Here are the four key tenets of this 'narrow and tailored approach,' according to the FCC. Under the plan, the commission would:

  • recognize the transmission component of broadband access service-and only this component-as a telecommunications service;
  • apply only a handful of provisions of Title II (Sections 201, 202, 208, 222, 254, and 255) that, prior to the Comcast decision, were widely believed to be within the Commission's purview for broadband;
  • simultaneously renounce-that is, forbear from-application of the many sections of the Communications Act that are unnecessary and inappropriate for broadband access service; and
  • put in place up-front forbearance and meaningful boundaries to guard against regulatory overreach.


This approach would provide a solid legal basis for the FCC's actions relative to broadband, restore the pre-Comcast-ruling status quo, and treat only the transmission component of broadband access service as a telecommunications service while preserving the longstanding consensus that the FCC should not regulate the Internet, including Web-based services and applications, e-commerce sites, and online content, the commission says.

The FCC expects to launch an effort to gather comment on this approach.

Edited by Michael Dinan