Free Press Calls on FCC to Reassert Authority over Broadband

New Report Presents Legal Case for Title II Approach
Contact Info: 

Jenn Ettinger, 202-265-1490 x 35

WASHINGTON – On Monday, Free Press released a new report, Restoring FCC Authority to Make Broadband Policy: A Way Forward After Comcast v. FCC. The report outlines the legal case for the Federal Communications Commission to restore its authority over broadband by reclassifying it under Title II of the Communications Act.

The paper argues that this is the most reasonable and legally sound way for the FCC to move forward in the wake of the Comcast v. FCC case, in which the U.S. Court of Appeals for the D.C. Circuit cast doubt upon the FCC's authority over broadband under Title I of the Communications Act. The paper questions claims that the agency could restore its authority under Title I. It also argues that waiting for congressional action would cause the United States to fall further behind the rest of the world in broadband quality and adoption.

“The FCC has both the authority and the duty to step into the void, and to reclassify broadband,” said Aparna Sridhar, Free Press policy counsel and author of the report. “We can’t wait for five or 10 years to get rural and low-income Americans hooked up to broadband. And we can’t wait for five or 10 years to create policy preserving principles of openness that have made the Web so successful thus far. The public needs those changes now, and the FCC is really its only hope.”

In 2002, the FCC moved to deregulate broadband access services, labeling them “information services” under Title I of the Communications Act. In 2007, cable giant Comcast was caught blocking its customers' access to BitTorrent, a popular file-sharing application. After the FCC sanctioned Comcast, the company filed suit challenging the decision. The appeals court made its ruling in Comcast v. FCC last spring, placing the agency's authority over broadband in legal limbo.

“The Obama administration set the goal of bringing affordable access to the Internet to all Americans, and right now this Commission doesn’t have the levers it needs to carry out those goals,” said Susan Crawford, Cardozo Law professor and former White House technology adviser. “The agency made a mistake in 2002 when it decided it could protect consumers without the authority Congress gave it in the Telecommunications Act.”

Unless it reclassifies broadband, the FCC’s ability to extend broadband access to rural and low-income communities, to protect the Internet from phone and cable companies seeking to construct toll roads online, and to ensure that the United States remains at the forefront of technology and innovation is in jeopardy. If the Commission proceeds under Title I, its authority to achieve these goals will be challenged in court under a legal framework that has already been questioned.

“Title I is leading the agency down a path of intense confusion and chaos, and I don’t think this chairman wants to leave behind a gutted agency,” said Tim Wu, Columbia University Law professor and author of The Master Switch. “By reclassifying broadband access services, we’re talking about an approach to communications policy that recognizes the Internet as basic communications infrastructure.”

A link to the report is here:

People + Policy

= Positive Change for the Public Good

people + policy = Positive Change for the Public Good