To his great credit, the legal justification that FCC general counsel Austin Schlick put together on the proposed plan the commission announced yesterday to regulate broadband service is eminently readable -- though some of that credit has to go to chair Julius Genachowski, because he's come up with a proposal that's actually an elegant public-policy response to the question of how the commission was going to claim the authority to do everything from ensuring net neutrality to promoting universal broadband access.
(Remember that the underlying question here for Obama's FCC is whether it was going to lightly regulate the Internet in its role as an "information service" or whether it should have a broader hand to play because of the Internet's infrastructural role as pipeline for communications.)
The appealing simplicity of Genachowski's third-way approach, as he's calling it, is captured by the fact that Schlick's argument is supported by both Justice Clarence Thomas' majority opinion and Justice Antonin Scalia's dissenting opinion in the 2005 Brand X case. In that case, Thomas argued that the FCC, as an expert agency, was to be granted deference as it pursued a deregulatory agenda in such a "technical and complex" area as cable broadband service. Scalia, on the other hand, argued that the FCC had overstepped its authorities in declaring broadband an information service, because the Internet is clearly both conduit and content.
Genachowksi and Schlick are, essentially, agreeing with both. Per Scalia, they are affirming that broadband clearly is a fundamental telecommunications service. And per, Thomas, they're arguing that, as the relevant expert agency, they don't have to actually use all of the considerable powers that treating broadband that way gives them under the law.
Thus, Genachowski's "Third Way." The law, says Schlick, actually gives the FCC 48 different provisions under which to regulate broadband. But they're only going to choose to use six -- primarily the ones needed to prevent service discrimination and promote broadband adoption, with the rest going into a lockbox under the "forbearance" procedure the commission has available to it.
(Photo credit: tellumo)
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