Internet Censorship

F.C.C. Says It Will Move Forward on Expanding Broadband Despite Recent Ruling that It Lacks Authority to Regulate the Internet

April 14, 2010

New York Times - The chairman of the Federal Communications Commission told a Congressional panel on Wednesday that a recent court ruling that the agency lacked authority to regulate the Internet should not prevent it from carrying out its plan to broadly expand the country’s high-speed Internet service.

But the chairman refused to say if the commission would try to reclassify Internet service as a utility similar to telephone service to overcome the court decision, a move that some Democratic senators supported but that several Republican senators strongly warned against.

Julius Genachowski, the F.C.C. chairman, said in testimony before the Senate Commerce Committee, that the agency’s lawyers were still considering the effect of the court case, Comcast v. F.C.C., on the commission’s effort, known as the National Broadband Plan.

The broadband plan seeks nationwide adoption of high-speed Internet service, greater availability of high-speed connections for wireless devices, and subsidies for rural broadband service.

Last week, a federal appeals court threw some of those plans into question, ruling that the F.C.C. had overstepped its authority when it tried to enforce a commission rule that required companies to give broadband users equal access to all Internet content.

The commission said it thought that it could pursue its goals and abide by the court ruling. It does not plan an appeal.

Mr. Genachowski said he thought that the court decision did not inhibit the F.C.C. from protecting consumers in their use of communications networks, “whether traditional networks or newer data networks.” But he acknowledged that the agency was still studying how it could carry out its goals, one of which would extend universal Internet service to rural areas using the Universal Service Fund, which helps pay for phone service in sparsely populated areas.

He predicted that the agency would still be able to undertake those efforts, saying they were “consistent with the Communications Act,” and similar to what the F.C.C. has done “for quite some time.”

Some Republican senators sharply disagreed.

Senator Mike Johanns of Nebraska said he thought the court’s ruling was “very specific in saying you don’t have the authority” to enforce equal-access standards.

“I don’t agree with that,” Mr. Genachowski replied. He said that the commission thought it could take steps to protect consumers from discriminatory Internet policies — an indirect reference to its equal-access efforts — “and I assure you that anything we do in all of the areas concerning communications will have solid legal authority.”

Some consumer advocates have urged the commission to reclassify Internet service from its current designation as a communications service, over which the F.C.C. has limited regulatory authority, to a category like telephone service, which the agency has the clear authority to regulate.

The F.C.C. itself moved to deregulate Internet service by moving it to its current status during the Bush administration. It could, therefore, reverse that decision without seeking the approval of Congress.

Senator Kay Bailey Hutchison of Texas, who is the committee’s ranking minority member, warned against such a move. If it did so without the authorization of Congress, she said, “the legitimacy of the agency would be seriously compromised.”

Several times, Mr. Genachowski ducked direct questions as to whether the F.C.C. was considering moving the regulatory designation of Internet service from one category to the other.

“I have instructed our lawyers to take the recent decision seriously,” he said, “and evaluate what our options are.”

Senator Byron L. Dorgan, a North Dakota Democrat, encouraged such a strategy.

“I love the free market, but it needs a referee,” he said.

Other senators were more restrained in their support of the idea. Senator John Kerry, Democrat of Massachusetts, said in a statement that while he was reserving judgment on whether the F.C.C. should reclassify broadband services, “because I want you to explore all options,” he added that he thought the commission had the legal authority to do so “if it wishes.”

In the meantime, he added, “ I do not believe broadband either should or needs to go without F.C.C. oversight.”