Genachowski Announces Plans to Regulate Broadband

December 1, 2010. The Federal Communications Commission (FCC) announced that it is scheduled to adopt an order at its December 21, 2010, event titled "open meeting" that includes rules for regulating broadband internet access service (BIAS) providers. However, this item will not reclassify BIAS as a Title II service. The FCC has not released the text of the proposed rules.

The FCC released a tentative agenda on November 30, 2010, that lists an "Open Internet Order". This agenda states that the FCC plan to adopt an order that contains "basic rules of the road to preserve the open Internet as a platform for innovation, investment, competition, and free expression. These rules would protect consumersí and innovatorsí right to know basic information about broadband service, right to send and receive lawful Internet traffic, and right to a level playing field, while providing broadband Internet access providers with the flexibility to reasonably manage their networks."

FCC Chairman Julius Genachowski read a speech [4 pages in PDF] on Wednesday morning, December 1, 2010, in which he described and advocated, but did not recite, these proposed rules. Then, FCC staff held a news conference after Chairman Genachowski read his speech.

See also, TLJ web page titled "TLJ Comparison Chart: Regulation of Broadband Internet Access Service (BIAS)", December 1, 2010. It compares the FCC Policy Statement (August 5, 2005), FCC NPRM (October 22, 2009), Verizon Google Proposal (August 9, 2010), Waxman Proposal (September 29, 2010), and Genachowski speech (December 1, 2010).

Genachowski's speech consisted largely of rhetoric in support of his proposal. However, he disclosed some of its content, in broad and vague terms.

He argued that "Broadband providers have natural business incentives to leverage their position as gatekeepers to the Internet" and that the forthcoming rules are "designed to guard against these risks".

His proposed rules contain transparency requirements for BIAS providers. He said that "consumers and innovators have a right to know basic information about broadband service, like how networks are being managed. The proposed framework therefore starts with a meaningful transparency obligation".

His proposed rules also address the freedoms to access content on the internet, to use applications and applications, and to connect devices. He said that "consumers and innovators have a right to send and receive lawful Internet traffic -- to go where they want and say what they want online, and to use the devices of their choice. Thus, the proposed framework would prohibit the blocking of lawful content, apps, services, and the connection of non-harmful devices to the network."

His proposed rules also contain a non-discrimination requirement. He said that "the proposed framework includes a bar on unreasonable discrimination in transmitting lawful network traffic".

Genachowski also referred to "the appropriateness of recognizing differences between fixed and mobile broadband ... Accordingly, the proposal takes important but measured steps in this area -- including transparency and a basic no blocking rule. Under the framework, the FCC would closely monitor the development of the mobile broadband market and be prepared to step in to further address anti-competitive or anti-consumer conduct as appropriate."

Finally, he touched on network management practices. He said that "broadband providers need meaningful flexibility to manage their networks -- for example, to deal with traffic that's harmful to the network or unwanted by users, and to address the effects of congestion. Reasonable network management is an important part of the proposal, recognizing that what is reasonable will take account of the network technology and architecture involved."

His proposed rules include several concessions to BIAS providers. He said that this item would not reclassify broadband as a Title II service. The nondiscrimination requirement and network management practices section are both subject to a reasonableness standard.