Aug. 28, 2014

Brown: FCC Chief’s Proposal Does What Congress Wanted

The fight over the future of open access to the Internet has turned into a public relations war as well as a political football in Congress.

Last month, Federal Communications Commission Chairman Julius Genachowski announced his proposal to clarify the agency’s authority to oversee the likes of AT&T, Verizon and Comcast in their critical roles as providers of transport links to high-speed Internet access. The chairman’s approach has the strong support of fellow Commissioners Michael Copps and Mignon Clyburn. Ever since that announcement, however, opponents of the Genachowski proposal have recruited proxies to mount a major public relations campaign of disinformation.

In addition, separate groups of Democratic and Republican Congressmen have communicated their opposition to the Genachowski proposal while others in Congress have supported it. Even civil liberties and civil rights groups have weighed in for or against the proposal, depending on whether they see it as promoting or slowing broadband deployment and adoption.

At issue is how best to restore FCC oversight of the major telephone and cable companies when they provide the transport communications link, or “access,” to the Internet — and who serve as gatekeepers because of their unique role in providing such access. FCC oversight of these gatekeepers has been in doubt because a federal appellate court, in the Comcast v. FCC decision handed down in April, rejected the approach that the agency had implemented until this year.

Genachowski called for a “third way” approach to oversight, using a “light touch” version of the statutes and rules that always have governed the provision of such communications transport services. Major telephone and cable companies are now challenging the FCC’s ability to adopt this approach, while citizens groups that see the Internet as a tool of free expression and high tech companies that need an open Internet to grow and innovate generally support the proposal.

The FCC and the gatekeepers agree on at least one thing: that the regulatory approach in place for a decade prior to Comcast v. FCC benefited everyone, including Internet users, the telephone and cable companies that have spent billions of dollars connecting customers to the high-speed Internet, and thousands of content generators that use the open Internet to disseminate messages and provide goods and services.

The issue is whether and how the FCC should restore oversight of the gatekeepers. The stakeholders dispute what is the best and least intrusive way to proceed.

On this question, much of the argument against the Genachowski proposal creates more confusion than clarity. Stripping away the rhetoric used by the proxy opponents of the proposal, the fact is the gatekeepers that provide transport and access to the Internet, not the FCC, are the ones pressing for fundamental change in the regulatory status quo that has thus far worked so well.

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