- The Washington Times - Wednesday, May 5, 2010

To the delight of left-leaning media activists and the chagrin of free-market groups, the head of the Federal Communications Commission is set to claim the agency has the authority to impose new regulations on Internet service providers to mandate that they treat all Web content equally.

FCC Chairman Julius Genachowski’s planned Thursday announcement — designed to lay the groundwork for what supporters call “net neutrality” — comes several weeks after the D.C. Circuit Court of Appeals dealt the agency a huge blow by tossing out an order against Comcast Corp. on the grounds it lacked the power to tell Internet providers how to manage traffic over their networks.

Undermining a marquee priority of President Obama’s FCC, that ruling set off a political firestorm among Democrats and the left as activists urged Mr. Genachowski, one of three Democrats on the five-member agency, to retool the way the commission classifies Internet services under the major statute from which it draws its authority. Currently, the Internet is classified as an “information service” and largely unregulated. But by shifting broadband to the mantle of “common carrier” services, the FCC would put it under the same extensive regulatory scheme it has used for decades with respect to the telephone industry.

By all accounts, Mr. Genachowski is trying to strike a middle ground on the highly contentious issue. A senior FCC official on Wednesday said the chairman is going to lay out “a third-way approach” Thursday between the weak current regulatory scheme and “a needlessly burdensome” approach under the phone rules.

The official said Mr. Genachowski’s plan would only apply a “small handful” of the common-carrier provisions — which date back to the 1934 statute that created the agency — to Internet service providers to “restore the status quo as it existed prior to the court decision in order to fulfill the previously stated agenda of extending broadband to all

Americans, protecting consumers, ensuring fair competition and providing a free and open Internet.”

At the same time, the agency would impose “meaningful boundaries to guard against regulatory overreach.”

The move is sure to add fuel to the fire in an already intense political fight.

Public-interest groups were quick to cheer news of the move late Wednesday, arguing such rules are necessary to prevent Internet providers from slowing access to certain applications, as the FCC accused Comcast of doing to users of BitTorrent, a peer-to-peer file-sharing service. Internet giants like Google Inc. and Amazon.com Inc. have also been lobbying hard in favor of net neutrality rules.

“The FCC is sending a clear signal that they are backing away from the cliff,” said Josh Silver, president of Free Press, a left-leaning media advocacy group. “It appears they are charting a path toward a sensible broadband policy framework that will protect consumers and promote universal access. This is extremely welcome news.”

But Internet service providers, led by Comcast, the nation’s largest cable firm, have been vehement opponents of net neutrality regulations, saying they aren’t necessary and could stifle investment and innovation.

The FCC wouldn’t release further details of Mr. Genachowski’s plan Wednesday, but it’s certain to spark a legal challenge questioning the agency’s justification for changing the way it has classified Internet services for the last several years.

“The Commission’s indication that it wants to regulate the Internet under an arcane law designed for 1930s telephone companies, all to enact so-called ‘net neutrality’ rules, is a prime example of the tail wagging the dog. Given that the Internet has flourished as an unregulated entity for over 25 years, this move by the FCC is unwarranted, overreaching, and destined to crush investment and growth throughout the entire Internet ecosphere,” said Kelly William Cobb, executive director of Americans for Tax Reform’s Digital Liberty Project.

The FCC’s chosen approach appears to mirror instructions from top Democrats on Capitol Hill who urged Mr. Genachowski in a letter Wednesday to “consider all viable options” that would allow it to move forward with its national broadband plan, which embraces net neutrality in its goal of promoting high-speed Internet access among all Americans.

The public nudging by Rep. Henry Waxman of California and Sen. Jay Rockefeller of West Virginia — chairmen of the committees that oversee the FCC — came two days after the Washington Post quoted anonymous FCC sources saying Mr. Genachowski was thinking about abandoning his pursuit of new Internet regulations.

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