FCC General Counsel Austin Schlick has written a remarkably clear statement of FCC Chairman Julius Genachowski’s proposed “Third Way” framework for ensuring Internet openness.
The lede, however, is somewhat buried. The headline might have read, “FCC Proposal OK with Supreme Court.” Here’s why:
In 2002, the FCC classified cable modem service as an information service.
In April 2010, the Court of Appeals struck down the FCC’s ability to regulate Internet Access Provider behavior. The Appeals Court found that the FCC did not have sufficient authority to regulate Information Services in the case where Comcast secretly messed with its customers’ lawful use of the Internet.
However, in the Brand X case, in 2005, a six-justice majority of the Supreme Court held that the FCC had clear authority as an “expert agency” to classify cable modem services as it saw fit. The other three justices argued vigorously that cable modem service was in part (the transmission part) a Telecommunications Service and in part (the applications and content) an Information Service.
Thus, if the FCC were to re-classify Internet access to be a Telecommunications Service, then all nine members of the Brand X Supreme Court would agree. Six would agree because the FCC has the authority, and three would agree because the FCC would be doing the right thing.
Schlick’s summary goes on to explain why the FCC’s regulation of the Telecommunications Service part of the Internet should be with a light hand, and it’s hard to disagree (except if your salary might seem to be at stake). It’s quite educational to read the whole thing. The FCC’s Legal Framework Glossary for Brand X is pretty good too!
h/t to Susan Crawford for pointing out Schlick’s essay!
Technorati Tags: BrandX, FCC, NetworkNeutrality, Scotus, SusanCrawford
Dave Chaffee says:
This sounds on target. The Comcast decision did not say the FCC did anything wrong in taking action against Comcast, only that it did not have the authority to do so. The Commission wants to get the authority without seeming heavy handed. AT&T threatened to cut back on cap ex spending if the FCC took this action. Let’s see if they really want to play this game of chicken…
May 12, 2010, 11:02 pmBenjamin Hall says:
This sounds on target. The Comcast decision did not say the FCC did anything wrong in taking action against Comcast, only that it did not have the authority to do so. The Commission wants to get the authority without seeming heavy handed. AT&T threatened to cut back on cap ex spending if the FCC took this action. Let’s see if they really want to play this game of chicken…
May 30, 2010, 9:34 am+1