Federal Communication Commission Chairman Julius Genachowski has engineered what he's calling a "Third Way" on the crucial issue of Net Neutrality and broadband development. Pressured by many into reclassifying high-speed Internet access as a "telecommunication service," (Title II) which would allow significantly greater government oversight, Genachowski showed sensitivity to the telecom industry (and right-wing lobby) pushback to leave the classification as a lightly-regulated "information service" (Title I). Promising that the FCC would only regulate when and where necessary ("...a narrow and tailored approach"), Genachowski's FCC majority would take the step to reclassify high-speed Internet access as a "telecommunication service," but utilize "forbearance," a legal concept involving voluntarily refraining from enforcement, for much of the FCC's traditional powers under Title II, such as rate regulation and forced unbundling. Susan Crawford has a letter from the FCC's General Counsel Austin Schlick explaining all this and much more here.
This regulatory triangulation is not likely to satisfy the industry critics of Net Neutrality, nor stop the flow of lobbying funds to their sock-puppet mouthpieces. There will be court challenges galore, and efforts to game the FCC, Congress and state legislatures. The industry knows well that where there is forbearance by an independent regulatory agency, there can later be "unforbearance" when circumstances change.
One thing is certain: the "Third Way" will be a boon for the army of telecommunications lawyers, lobbyists, and policy consultants fighting for advantage on all sides of the many issues involving broadband. Thanks, Chairman Genachowski.
- Barry Orton