Initial Comments are due July 15, 2010, and Reply Comments are due August 12, 2010.

The Federal Communications Commission (FCC) today adopted, after a 3-2 vote, a Notice of Inquiry (NOI) seeking comment on its authority to adopt its proposed Open Internet rules (Docket No. GN 09-191) via the “Third Way” approach announced by Chairman Julius Genachowski on May 6, 2010. The NOI is available here.

The Chairman’s Third Way proposal is that the FCC invoke six provisions of Title II of the Communications Act as the basis for imposing the Open Internet principles:

• Section 201 which requires that the “charges, practices, classifications, and regulations” of interstate communications be “just and reasonable”
• Section 202 which prohibits unlawful discrimination in the provision of interstate communications
• Section 208 which permits any person, “body politic or municipal organization” or any State commission to file a complaint alleging unlawful conduct by a provider of interstate communications
• Section 222 which protects the privacy of consumer information related to their use of communications services, known as “Customer Proprietary Network Information” or “CPNI”
• Section 254 which establishes the services eligible for Universal Service Fund assistance and requires, among other things, that providers of interstate telecommunications must contribute a portion of revenue to the Fund
• Section 255 which ensures that persons with disabilities have “readily achievable” access to telecommunications services and equipment

For our summary of the Chairman’s Third Way approach, click here. 

According to today’s presentations, the NOI presents three options for articulating the FCC’s authority to adopt open access rules for broadband Internet transmission services, and seeks comment on each:

• Maintain the current legal framework of invoking ancillary jurisdiction pursuant to Title I
  The Commission particularly seeks comment on whether it can apply Universal Service funding and privacy protections under this framework.
• Apply Title II in its entirety to broadband transmission services
  The Commission asks commenters to refresh the record as to the facilities and services that comprise broadband connectivity.
• Adopt the Third Way approach, applying the six identified provisions of Title II while creating “lock-in forbearance” from applying the remaining several provisions
  The Commission emphasizes that this approach will exclude the network unbundling and interconnection obligations that are imposed by Title II.  It notes that this approach resembles the treatment of mobile telephony under Section 332 of the Communications Act, in which the FCC reserves the authority to protect consumer welfare and the public interest without imposing onerous rate regulation.

The latter two approaches would classify broadband Internet access services as telecommunications, which are governed under Title II, rather than as information services which are governed under Title I. Yet in the wake of the DC Circuit’s decision in Comcast v. FCC, Case No. 08-1291, in which the court of appeals rejected the FCC’s attempt to rely on Title I ancillary jurisdiction to redress Comcast’s manipulation of broadband traffic, many believe that such reclassification is now required. For our summary of the Comcast decision, click here.

The Commission invites comment on how each approach can foster increased network investment, competition in broadband services, and benefits for consumers.

The NOI also seeks comment on additional related issues, including:

• How wireless broadband Internet transmission services should be treated
• How non-facilities based Internet Service Providers should be treated
• What are the implications of the forthcoming legal framework for state and local regulation
• When should the new legal framework be effective
• Whether the FCC should close the existing cable modem open access proceeding

We have been informed that the FCC intends to publish its statutory analysis and legal framework in a Declaratory Ruling after its consideration of the forthcoming NOI comments.

For further information or for assistance in filing comments, please contact any of our attorneys in the Arent Fox Telecommunications Group, including:

Ross A. Buntrock
buntrock.ross@arentfox.com
202.775.5734

Jonathan E. Canis
canis.jonathan@arentfox.com
202.775.5738

Alan G. Fishel
fishel.alan@arentfox.com
202.857.6450

Michael B. Hazzard
hazzard.michael@arentfox.com
202.857.6029

Stephanie A. Joyce
joyce.stephanie@arentfox.com
202.857.6081

Jeffrey E. Rummel
rummel.jeffrey@arentfox.com
202.715.8479