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A Third-Way Legal Framework For Addressing the Comcast Dilemma

May 6th, 2010 by Austin Schlick General Counsel

austin schlickWhen the D.C. Circuit issued its opinion in the Comcast/BitTorrent case, it was clear the decision could affect a significant number of important recommendations in the National Broadband Plan, the Commission’s Open Internet proceeding, and other policy initiatives related to broadband.  In light of the uncertainty created by the decision, the Chairman asked me to investigate all of the options available to the Commission.  Other FCC staff and I have developed a proposal that we believe resolves the doubt created by the D.C. Circuit’s opinion while providing a firm legal basis for the Commission’s limited, but vital role with respect to broadband.  Whether, all things considered, the legal response to Comcast sketched out in our proposal is the best one for the Commission to adopt would be for the five FCC Commissioners to answer after public comment and private study.  In my judgment, it’s a question worth asking.

Read more about the proposal here.

Read Chairman Genachowski’s statement discussing his reasons for seeking comment on the proposal here.

[Cross-posted from Blogband]

  1. Guest says:

    This is a big problem. For instance I like to watch movies online at streamsly and if all of the smaller ISP’s no longer have a competitive advantage and I’m forced to go to Comcast what happens when my net is throttled. Streaming video and bandwidth is going to come to a head very soon and I hope this doesn’t impeded our technological growth. Just my 2 cents.

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  2. Brett Glass says:

    Unfortunately, the notion of “forbearing” from sections of a misapplied law — in effect, making new law by cutting words and phrases out of an old one like a ransom note — seems unlikely to be effective and also paves the way for “mission creep” in the future. Not only does Commissioner (and recent interim Chairman of the agency) Copps state at

    http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-297946A1.pdf

    that he wishes to limit forbearance or make it impermanent; the oogle lobbying group Public Knowledge is likewise asking the FCC to forbear fron less than originally stated and to make provisions to undo that forbearance in the future. In its ex parte memo at

    http://fjallfoss.fcc.gov/ecfs/document/view?id=7020493265

    the group urges the FCC to “address the feasiblity of ‘undoing’ forbearance.” In short, despite having praised the idea of a “light touch,” the group now admits that what it really wants is to get the camel’s nose into the tent so that any and all regulation of the Internet (including “decency” regulation applying to content!) becomes fair game.

    This is the danger of the Commission’s proposed approach — and the reason why network operators — large and small — have no choice but to oppose it. Investors are already walking away…. All of the investors in my small ISP have.

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