Free Press: Net Legislation Should Not Supplant FCC Title II Action

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Free Press says a legislative clarification of the Federal Communications Commission's broadband regulatory should not supplant commission action to do so under Title II common carrier authority.

FCC chairman Julius Genachowski has proposed applying some Title II regulations to broadband transmissions to provide that clarity in the wake of the D.C. court's smackdown of its BitTorrent decision, comments on which are due at the agency today.

But his chief of staff, Edward Lazarus, has also been meeting with various stakeholders including cable and telco interests, Google, and the Open Internet Coaltion, of which Free Press is a member, on a possible legislative solution.

Given the push back from some in Congress and most in industry on the chairman's so-called "third way" Title II proposal, a "fourth way" targeted bill, if it united the two sides of the debate, put the job of clarifying congressional authority in the hands of Congress, and could be passed before legislators exit to try to get re-elected, it could be a win-win for the chairman. But it is also an extremely tall order.

In its July 15, Free Press said that given the pace of legislative change, the FCC cannot afford to wait to defer to the Hill, "regardless of political posturing and closed-door negotiations at the FCC."

Without action as soon as possible, they suggest, broadband providers will be free to block and degrade Internet traffic at will. "The agency needs to move quickly to vote on the proposal, "says the group, "as any further delay leaves millions of broadband customers without basic consumer protections and threatens the future of the open Internet."

There are at least two potential legislative tracks, one a more targeted bill that could conceivably move on a faster track, and via the current Hill talks about a rewrite of the Telecommunications Act--more talks are scheduled for Friday according to sources--which could take years.

"Various parties have suggested that Congress could step in and restore the commission's authority over broadband networks," said Free Press. "While Congress has begun discussions regarding comprehensive revisions to the Communications Act, the legislative process necessarily operates more slowly than the administrative process. The last time Congress updated the Communications Act, it took at least five years. Because we cannot afford to wait that long to pursue the nation's broadband goals, congressional efforts cannot and should not supplant commission action."

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