Title II Lite: Scalia's Way

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Federal Communications Commission chairman Julius Genachowski and general counsel Austin Schlick are calling their Title II Lite approach to broadband regulation a "third way," but they might as well call it "Scalia's Way."

In outlining the proposal on May 6, Schlick cited Justice Antonin Scalia's dissenting opinion in the Brand X case, which was the one where the Supreme Court upheld the FCC's classification of broadband as a Title I information service.

Scalia had argued that the transmission and computing functions should be treated as two separate components, and the FCC has decided the minority opinion provides its best path forward.

"Justice Scalia's bifurcated view of broadband Internet access service is entirely consistent with (although not compelled by) the Brand X majority opinion," said Schlick in outlining the proposal. "This course would also sync up the commission's legal approach with its policy of (i) keeping the Internet unregulated while (ii) exercising some supervision of access connections.

Under the FCC's proposal, which net neutrality activists said they expect to be voted on within the next several weeks, "the provisions of Title II would apply solely to the transmission component of broadband access service, while the information component would be subject to, at most, whatever ancillary jurisdiction may exist under Title I," said Schlick.

Schlick said the commission will not apply the "vast majority" of the Title II regulations to broadband access services, with "as few as six" sufficient to do the job he says.

Those six would cover: unreasonable denials of service; promoting universal service; protecting confidential information; and requiring accessibility of equipment, including customer premises equipment, to the disabled.

Schlick said what would not be included in the third way is any new unbundling authority, rate regulation or, likely, mandatory access by unaffiliated ISPs to cable modem service. "The commission has not taken any action to implement mandatory access to cable broadband networks," said Schlick, "and a consensus seems to have developed that it should not be ordered."

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