'Third way' opponents pin hopes on Congress

Based on comments filed last week with the Federal Communications Commission about its proposed “third way” approach to regulating the Internet, it appears that opponents of the plan — including telcos and cable companies — have determined their best hope lies in Congress.

The third way plan seeks to apply certain telecommunications service, or Title II, requirements to Internet connectivity, which traditionally has been classified as a more lightly regulated information, or Title I, service.

“With respect to areas not within its existing legal authority, the Commission should pursue a fourth way and turn to Congress for guidance on proceeding with a new broadband legal framework,” said the Telecommunications Industry Association in its remarks. Additional comments urging the FCC to turn to Congress to answer broadband regulatory questions also came from AT&T, Comcast, the National Cable Television Association and Qwest, among others.

A statement from Kyle McSlarrow, president and CEO of the NCTA, focused on certain comments previously made by FCC Chairman Julius Genachowski that suggested Congressional action might be appropriate.

“We believe that is the right next step, and we can preserve our ability to protect consumers, maintain an open Internet, and encourage continued investment and innovation through carefully targeted legislation,” McSlarrow said.

The FCC’s authority over Title II services is firmly established, and by reclassifying Internet connectivity, the FCC hopes to gain the power to implement certain policy goals. These include implementing Net neutrality guidelines that seek to prevent connectivity providers from blocking or providing inferior access to certain content and reforming the Universal Service Fund program to focus on broadband rather than voice connectivity. The FCC’s ability to implement such policies was called into question by the Comcast court decision earlier this year.

Many third way opponents would like to see Universal Service reforms implemented -- and in the comments filed last week, many of them argued that the FCC has the authority to implement those reforms by using ancillary authority.

Several opponents urged the FCC to continue to pursue its objectives under its existing ancillary powers. “The commission should limit new regulations to its existing Title I authority and seek Congressional action before taking action not clearly within that authority,” Qwest wrote.

Several third way opponents also argued that the third way approach is not needed to prevent anti-consumer actions on the part of Internet connectivity providers.

“To the extent Title I provides insufficiently to protect the open Internet, the Broadband Internet Technical Advisory Group and other industry and government collaborative efforts can maintain a watchful eye while the Commission seeks any needed authority from Congress” wrote Comcast in its filing.

Last week’s comment filings were in response to a notice of inquiry recently issued by the FCC.