Federal Communications Commission

The FCC Role With Respect to Broadband

July 15th, 2010 by Admin User

[Wireline Competition Bureau Deputy Chief Carol Mattey prepared this speech July 21, 2010 for delivery at the NARUC Summer Meeting in Sacramento, CA]

While communications technology has changed over the decades, the FCC’s core goals have remained constant:

  • Encourage private investment in communications infrastructure
  • Support meaningful access and universal service to communications technologies for all consumers
  • Promote competition in the industry
  • Foster innovation, economic growth, and job creation
  • Protect Americans’ safety though communications technology.

Over the past decade, the bipartisan approach to broadband communications has developed around these goals.  The Commission has taken a restrained approach to regulating broadband communications, focused on unleashing investment and innovation, while retaining the authority to protect and empower consumers when companies engage in unfair practices.

The historical approach also recognized that the great strength of the Internet stems from its absence of any central controlling authority.  The FCC’s role therefore includes not regulating the Internet itself.

So what changed?

With regard to the FCC’s goals?  Nothing.  With regard to our ability to achieve them?  Possibly a lot. 

In March, the DC Circuit issued Comcast v. FCC.  The DC Circuit was reviewing an order of the FCC that required Comcast to disclose its network management practices, and to submit to the FCC a compliance plan that detailed how it would stop certain network management practices that the FCC had found to be unreasonable.  The FCC relied on its so-called “ancillary  authority” for this action.  Comcast challenged that order in the DC Circuit, and the court held that the FCC had failed to tie its actions to a specific delegation of authority in the Communications Act. 

The recent court opinion in Comcast does not challenge the FCC’s important role in protecting consumers, promoting competition, and ensuring that all Americans can benefit from broadband. 

The opinion does cast serious doubt, however, on whether the legal framework the FCC chose for broadband Internet services nearly a decade ago is adequate to support effective implementation of the FCC’s mission.

The court opinion undermines a widespread understanding about the FCC’s authority and requires a reevaluation of the FCC’s legal framework around broadband Internet access services.

The FCC’s response

On June 17th, 2010, the FCC sought comment on three legal options and any other approaches that would restore a solid foundation for the Commission’s broadband policies.  The three options are Title I, Title II, and the “Third Way.” 

  • The first option is to maintain the current information service framework for broadband Internet services based on the Title I ancillary jurisdiction approach questioned in Comcast.  Under this option, the FCC would attempt to show the courts that the FCC’s broadband policies are sufficiently connected to policies for telephone and TV services 


  • The second option is to identify the connectivity portion of broadband Internet access services as a telecommunications service and apply to broadband all legacy regulations applied to telephone networks


  • The third option is to identify the connectivity portion of broadband Internet access services as a telecommunications service and simultaneously forbear from all but a handful of provisions, specifically, section 201, 202, 208, 254, 222 and 255.  The idea here is to focus on those core provisions of the Act necessary to protect consumers and fair competition, consumer privacy, universal service, reasonable access for people with disabilities, and limit ISPs’ ability to interfere with lawful communications.

The NOI specifically seeks comment on the three options for wired services – meaning services offered by landline telephone providers such as DSL or fiber to the premises, or cable modem.

The Notice also seeks comment on which of the three options, or an alternative framework, would best allow the Commission to effectively implement its policy goals for wireless broadband – referring to terrestrial wireless and satellite broadband Internet services.  In particular, the Notice asks whether there are technical, market or legal considerations specific to those wireless services that bear on their appropriate classification.

And as you all are so well aware, the NOI asks for comment on the states’ proper role with respect to broadband Internet services, and the implications that would arise from each of the three proposals.

The NOI acknowledges that if the Commission decides to alter its current approach, affected providers might need time to adjust to any new requirements, noting that the FCC could delay the effective date for 180 days, and for certain provisions (section 222, 254(d) and 255) the decision could be phased in on an even longer time table.  The Notice seeks comment on the effective date that the FCC should adopt for a classification decision under any of the approaches presented.

Meanwhile, Congress is interested in these issues

Senators Rockefeller and Kerry and Representatives Waxman and Boucher have begun a process to develop proposals to update the Communications Act.  Chairman Genachowski has committed all available FCC resources to assisting Congress in its consideration of how to improve and clarify our communications laws.

In view of the Comcast decision, and as the Committee Chairmen have requested, the FCC has an obligation to move forward with the NOI public proceeding, which is complementary to Congress’ own efforts.


Comments were filed on July 15th, and replies are due August 12th.    At the last count, the FCC received over 100 comments totaling over 2800 pages (not including attachments) from a broad cross section of interested parties, including wired and wireless broadband providers, public interest organizations, academics, voice over Internet protocol providers, content providers, equipment manufacturers, and state and local offices and agencies.  In addition, we received thousands of letters from individuals.  Staff from across the FCC is busy summarizing the record – as we speak, I’m sure someone is reading your comments.

We look forward to an ongoing open dialogue about these issues with state commissions and others.

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