FCC Looks to ‘Third Way’ to Regulate Broadband Service

Posted: May 10, 2010

Late last Wednesday, the FCC announced a new approach to regulating high-speed Internet whereby the commission will assert its regulation over broadband service similar to its authority over traditional telephony services. The FCC is calling this approach the “Third Way,” as it plans to impose a “lite version of Title II” regulation on broadband service.

Under the current regulatory regime, Internet services have historically been regulated as Title I or information services. Traditional telephony and telecom services, on the other aside, are subject to stricter Title II guidelines. The FCC was forced to take action and modify its working framework after it lost a key federal appeals court decision last month involving Comcast, the nation’s largest cable company. This new strategy will establish the commission’s authority to regulate the transmission component of broadband service, but not broadband rates or Internet content, services, applications or electronic commerce sites. Under the Title II “lite” approach, the commission will:

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.

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