FCC Chairman Julius Genachowski has outlined a new plan for imposing network neutrality regulation on broadband providers. The draft rule is not yet public, but it sounds really rather reasonable as described by Genachowski.
- Broadband providers would have a “transparency obligation” so consumers and innovators know basic information about how networks are being managed.
- Blocking would be prohibited, so consumers and innovators can send and receive any lawful Internet traffic
- Broadband providers could not unreasonably discriminate in transmitting lawful Internet traffic.
- Broadband providers would have meaningful flexibility to manage their networks to deal with harmful traffic and to address network congestion.
- Aside from a transparency requirement and a basic no blocking rule, mobile broadband would be closely monitored by the FCC. The commission would be prepared to step in to address anti-competitive or anti-consumer conduct as appropriate.
- Broadband would not be classified as a Title II telecommunications subject to onerous legacy regulation.
This proposal avoids the worst features of previous proposals, which would have relegated broadband to common carrier status despite the fact that broadband is still a dynamic industry.
Together with the recent Waxman proposal, this initiative may tend to reassure potential investors who have found plenty of reason to fear the worst.
One thing that isn’t clear is what makes Genachowski think the commission has authority to enact this proposal. In Comcast v. FCC the U.S. Court of Appeals for the D.C. Circuit made it clear there are significant limitations on the jurisdiction of the FCC to regulate broadband services. Genachowski sidestepped this issue. In the past, on occasion, the commission has made repeated attempts to enact a particular policy preference even after the Court of Appeals said “no.” The Court of Appeals usually prevails.
President Obama promised network neutrality regulation. Politically, Genachowski (Obama’s appointee) has to do something. And this is something.
It could be a lot worse.