The Federal Communications Commission (FCC) has come up with fascinating and complicated solution to the broadband and Net neutrality problem. We break it down for you.
The solution that FCC Chairman Julius Genachowski announced today is a doozy (you can read more about it in our news story, "FCC Proposes 'Third Way' to Regulate Broadband"). I won't try and explain all the workarounds. Instead, I think it's important to focus on what this proposal means.When caught between a rock and a hard place, try to find a third way. This is the primary lesson behind the Federal Communications Commission's decision to do some policy somersaults in order to solve a seemingly unsolvable problem: how to have some kind of "positive impact" on broadband, its proliferation in America, and Net neutrality.
1) The FCC Can't Regulate "Information" This should have been obvious from the start. It's not called the "Federal Content Commission," and when the FCC tried to define the Internet as a content delivery system and go after Comcast for practices it thought were preventing the free flow of content access, the FCC went outside its jurisdiction. If we didn't know that right away, we started to get the hint when the appellate court ruled against the FCC. Now that the FCC is defining the Internet as a telecommunications service, we know it for certain.
2) The FCC Can Regulate Communications Services Yes, the Federal Communications Commission was founded so it could regulate this stuff. From this point forward, the FCC could be on more solid ground when it talks about Internet, broadband inequities, and Net neutrality. In fact, if every FCC broadband policy statement uses a telephone company analogy ("AT&T can't slow down your telephone call if you're chatting about pirating Iron Man 2"), then things may go swimmingly.
3) The Internet is a Collection of Communications Services The FCC is correct. For all the content and media flowing through the Internet, its infrastructure is still about communication. It no more matters what you talk about on the phone, than it does what kind of content is flowing back and forth over the Internet. The FCC is all about the pipes.
4) Those Communications Services Extend Across Technologies The FCC may now see the Internet as one big communication ocean, but it's really more like The Great Lakes, with a number of major delivery platforms, including cable, telephone, wireless, cellular, broadband, and fiber. And all of them have some small channels of overlap.
Even so, this new "third way" provides the cover for the FCC to regulate each of them in the public's interest. It's all just telecommunications and, with a lot of statute twisting and crafty interpretation, the FCC may still be able to make some sort of impact. Using the "third way" as cover, the FCC should be able to create policies that extend the reach of broadband and stop cable companies and ISPs from throttling service as they see fit.
5) The FCC's Authority Has Limits The FCC's new narrow view of the Internet and broadband may mean it can do far less to protect the needs of average consumers and far less to control ISPs, media companies, etc. Right now it's hard to tell if the FCC closed one door and opened another or closed both doors and locked itself in a small room with very little power to do much of anything about broadband. The "third way" says the FCC can't regulate ISP rates, content, online application, and ecommerce. So what's left?
Despite the "third way," there is still a ton of legal ambiguity about how broadband will be delivered, priced, and distributed throughout the U.S. The policies are just confusing enough that the public won't understand what the "third way" does or doesn't mean for the future of the Internet. If it becomes official policy for broadband access in the U.S, the real test will come the first time the FCC tries to apply it to a Comcast or Cablevision decision and the courts have to weigh in.
Hopefully, they will understand what the FCC is doing better than we do.