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FCC Chairman Genachowski expected to leave broadband services deregulated

By Cecilia Kang
Washington Post Staff Writer
Monday, May 3, 2010; A02

The chairman of the Federal Communications Commission has indicated he wants to keep broadband services deregulated, according to sources, even as a federal court decision has exposed weaknesses in the agency's ability to be a strong watchdog over the companies that provide access to the Web.

The FCC currently has "ancillary" authority over broadband providers such as Comcast, AT&T and Verizon and must adequately justify actions over those providers. Last month, the U.S. Court of Appeals for the District of Columbia Circuit said the agency had exceeded its authority in 2008 when it applied sanctions against Comcast.

The ruling cast doubt over the FCC's ability to create a "net neutrality" rule that would force Internet service providers to treat all services and applications on the Web equally.

FCC Chairman Julius Genachowski is expected to respond soon to the court ruling. Three sources at the agency said Genachowski has not made a final decision but has indicated in recent discussions that he is leaning toward keeping in place the current regulatory framework for broadband services but making some changes that would still bolster the FCC's chances of overseeing some broadband policies.

The sources said Genachowski thinks "reclassifying" broadband to allow for more regulation would be overly burdensome on carriers and would deter investment. But they said he also thinks the current regulatory framework would lead to constant legal challenges to the FCC's authority every time it attempted to pursue a broadband policy.

"The telephone and cable companies will object to any path the chairman takes," said Art Brodsky, a spokesman for Public Knowledge, a media public interest group. "He might as well take the one that best protects consumers and is most legally sound."

The sources spoke on the condition of anonymity because a final decision hasn't been made and because of the sensitive nature of the issue. FCC spokeswoman Jen Howard would say only that Genachowski has not made a final decision.

Telecommunications companies would cheer a decision from the FCC to retain the current regulatory structure.

"It should come as no surprise . . . that leading financial analysts and technology commentators have questioned this path," the biggest telecommunications and cable trade groups wrote in a letter to Genachowski last week, warning against further regulation. "Thus it is hard to imagine a regulatory policy more at odds with the commission's goal of encouraging 'private investment and market-driven innovation.' "

Supporters of net neutrality -- companies such as Google and Skype as well as public interest groups -- have called for the agency to shift broadband Internet services more clearly under the agency's authority, saying consumers would be more vulnerable to business decisions that could cut off competition and access to applications on the Web. And they said the agency could strip broadband services of many of the rules that apply to other telecom services.

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