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Why broadband regulation needs help from Congress

Monday, May 24, 2010; A18

JULIUS GENACHOWSKI, chairman of the Federal Communications Commission, cannot win for losing.

Internet service providers (ISPs), including Comcast and AT&T, insist that a light touch is needed when regulating the Internet to guard against innovation-stifling intervention. Some public interest groups and businesses, including Google, argue that the FCC must seriously police the Internet to ensure ISPs do not discriminate against certain technologies. (Disclosure: The Washington Post Co. has interests in broadcast and cable television and businesses that depend on the Internet, all of which could be affected by FCC action or inaction.)

The debate intensified dramatically last month after a D.C. federal appeals court struck down the FCC's relatively relaxed regulatory approach.

From Mr. Genachowski's perspective, the ruling left the agency with a distasteful choice: Either abandon efforts to regulate broadband or reclassify the service to subject it to more muscular legal provisions typically reserved for telephone companies and other common carriers. Mr. Genachowski, in an effort at compromise, chose a third way: apply only a few of the common-carrier provisions to parts of broadband delivery.

This approach is also unacceptable. For some eight years, the agency has argued that broadband constitutes an "information service" and that it should be subject only to a light regulatory touch. To reverse course now by classifying broadband as a telecommunications service would require the agency to throw out years of its own data and analysis. While agencies have broad latitude in reevaluating regulatory schemes, reversals should be linked to significant market shifts. The facts do not support such a conclusion, and the FCC should not now try to shoehorn broadband into an existing -- but incompatible -- regulatory scheme.

What is needed is a fourth way: The agency, industry, consumer groups and other interested parties should work with Congress to craft clear but limited rules tailored to broadband. Advocates of increased oversight worry that the often-protracted legislative process will leave a gaping regulatory void that ISPs will exploit to engage in mischief. This is nonsense. It ignores the ISPs' need to provide good service to keep their customers, and it does not take into account the healthy oversight provided by those consumers and Internet watchdog groups. The Federal Trade Commission and the Justice Department also have the power to police anticompetitive or fraudulent acts.

At the moment, the FCC appears powerless to follow through with its national broadband plan, which includes the goal of expanding service to minority and poor communities. While we do not agree with much of the plan, there are worthwhile elements, including reporting, monitoring and transparency requirements, that the FCC could not enact without explicit legal authority. This is yet another reason why the agency should make a trek to Capitol Hill.

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