The Federal Communications Commission (FCC) should recognize that high-speed Internet access services (broadband) is now part of a national critical infrastructure – something it wasn’t eight years ago – and act to correct the regulatory mistakes of the past, Public Knowledge (PK) told the Commission in comments filed late today.
The text of the filing is here.
Failure to take the proper steps now will have important implications, PK said, telling the FCC: “The legal framework for the Commission’s authority over broadband will provide the foundation for every single decision and policy from affordable access to public safety. The Commission cannot fulfill its obligations to the American people and ensure continued, robust innovation and investment in the face of perpetual uncertainty over its authority to act.”
“The decision the FCC makes here will be one of the most fundamental rulings the Commission will ever make,” said PK Legal Director Harold Feld. “It is crucial for the FCC to recognize that in 2010, services connecting customers to the Internet fall under the traditional category of telecommunications services, which the FCC in 2002 did not understand when it made a different ruling.”
PK told the FCC that the April 6 ruling by the U.S. Appeals Court for the D.C. Circuit throwing out the reasoning behind the FCC’s 2002 ruling classifying cable modem service “simply highlighted what has been clear for some time – the regulatory framework for broadband no longer reflects market realities. The Cable Modem Ruling that established this framework was developed when the broadband industry was nascent. Now, eight years later, broadband has flourished and taken its rightful place as nationwide critical infrastructure. This mature market deserves a mature regulatory framework.”
Every legal test shows that “broadband access service” should be classified as a
“telecommunications service,” and thus subject to a traditional form of regulation, PK said, noting that the April 6 court ruling found the FCC’s justifications for their 2002 ruling moving broadband access out of traditional regulation “to be inadequate.” While the Commission has proposed that it not exercise its authority to regulate in certain areas (forbear from regulation), PK argued that the Communications Act restricts the parts of the law which can be set aside, including sections necessary to protect consumers and the public interest, including the public interest in competition among telecommunications providers.
PK said that the Commission “should retain authority necessary to promote the public interest and protect the network in the event of unforeseen violations, malfunctions, or other crises.” The filing added: “The Commission should ensure that it retains adequate authority to intervene where necessary to protect public safety and avoid catastrophic financial loss. As the recent tragic events in the Gulf show, some problems are simply not addressable with ad hoc remedies.”
Public Knowledge is a Washington D.C.- based public interest group working to defend consumer rights in the emerging digital culture. More information is available at http://www.publicknowledge.org
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