FCC abandons 'third way' in net neutrality order up for vote this month

The Federal Communications Commission Wednesday outlined its next steps for the "Open Internet Order," the set of rules for Net Neutrality proposed last year that were based upon the "Four Freedoms" for the open internet introduced by former Commissioner Michael Powell in 2005.

The Open Internet Order, which comes up for vote at the next open FCC meeting on December 21, is a set of guidelines that seek to limit the power of Internet service providers while maintaining an environment that fosters innovation and equal access.

"Broadband providers have natural business incentives to leverage their position as gatekeepers to the Internet," FCC Commissioner Julius Genachowski said on Wednesday. "Even after the Commission announced open Internet principles in 2005, we have seen clear deviations from the Internet's openness -- instances when broadband providers have prevented consumers from using the applications of their choice without disclosing what they were doing."

One of these clear deviations, Comcast's move to throttle peer-to-peer filesharing traffic in 2008, was declared to be outside of the FCC's jurisdiction after the Commission attempted to stop the behavior, and Comcast filed a lawsuit against the FCC in response.

The FCC was acting on the open Internet principles laid down by former FCC commissioner Michael Powell, but because these were more guidelines than actual laws, they couldn't be enforced.

A major point of debate that arose from the Comcast suit was how Internet services should be classified and who has the power to regulate them. In short, if the Internet was considered a Telecommunications service, it would be under the FCC's watch. But if it fell under the description of Information Services, it would be in the Federal Trade Commission's jurisdiction.

The amended Telecommunications Act of 1996 only gave the FCC the option to regulate broadband Internet like a telephone service (Title II) or a teletype service (Title I), and gave the Commission "ancillary authority" to protect information services since they worked in conjunction with communications services that the FCC had primary authority over.

Last May, Genachowski proffered the controversial "third way" to reclassify Internet traffic as a Title II service so the commission could regulate it, but with limitations to prevent the FCC from having too much power.

Today, it appears the "third way" has been dropped.

"The proposal is grounded in a variety of provisions of the communications laws, but would not reclassify broadband as a Title II telecommunications service," Genachowski said this morning. "I am satisfied that we have a sound legal basis for this approach."

Of course, the entire affair is still up for debate, and there are groups already opposing the proposal. Last night, FCC Commissioner Robert M. McDowell offered a strong admonition of the regulation.

"Pushing a small group of hand-picked industry players toward a 'choice' between a bad option (Title I Internet regulation) or a worse option (regulating the Internet like a monopoly phone company under Title II) smacks more of coercion than consensus or compromise." McDowell said. "By choosing this highly interventionist course, the Commission is ignoring the will of the elected representatives of the American people."

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