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Rick Joyce was quoted in a story posted to
Washington Post’s Post Tech Blog about the FCC’s options to pursue clear regulatory authority over broadband services in the wake of the commission’s defeat yesterday in the US Court of Appeals for the DC Circuit.
The court unanimously ruled that FCC lacks the statutory authority to force Internet service providers to treat all forms of content moving across their networks equally. In addition to hampering the Commission’s push for “net neutrality,” the ruling has serious implications for the Obama administration's plans to expand high-speed Internet service across the nation as well as the agency’s ability to enforce new advertising rules in regard to broadband speeds claims.
According to the group of analysts, law professors, telecom lawyers, industry trade groups and consumer groups surveyed by the
Post, the FCC has three likely options, each of which will be thorny.
- The FCC can attempt to classify broadband as a Title II common carrier service. While the agency has the legal authority to take this step without public comment, it would certainly face tremendous pressure from members of Congress sympathetic to opponents of the measure;
- The FCC could ask lawmakers to rewrite communications law to give the Commission clear authority over broadband services; or
- The Commission could appeal the Court’s decision in an effort to buy time as it pursues broadband policy objectives such as USF reform and net neutrality. Joyce told the Post there may be another way for the FCC to accomplish its goal. He said the Commission may be able to induce carriers to accept regulation by holding out a very attractive carrot.
“Although this may not be a view that any ISP openly embraces, the FCC could simply change its regulations to allow broadband service providers to ‘voluntarily’ to be regulated as Title II common carriers," he said. "Why should they? The incentive would be financial: millions of dollars in Universal Service subsidies would be available to them if they would.”