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FCC Chairman Julius Genachowski Friday said he would move to reclassify ISPs as common carriers, while at the same time insisting that ISPs be exempt from the vast majority of regulations in the current common carrier rules.
In order to accomplish this complicated fete, Genachowski said he will ask the FCC to forebear ISPs from the vast majority of common carrier regulations in Title II of the 1934 Communications Act and the more recent revisions in the 1996 Telecommunications Act. Rather than burdening carriers with all Title II regulations, Genachowski has whittled the total number of applicable regulations down to six, which he said would "treat only the transmission component of broadband access service as a telecommunications service while preserving the longstanding consensus that the FCC should not regulate the Internet."
Before we examine precisely which common carrier regulations Genachowski wants to enforce, we should take a step back and look at why the FCC is in its current predicament. The FCC has been regulating ISPs' traffic management practices in an ad hoc fashion since 2008 when the commission, then headed by former Chairman Kevin Martin, voted to bar Comcast from using peer-to-peer traffic management practices that target individual protocols for slowing or blocking.
Last year, new FCC chief Genachowski tried to expand the commission's role in regulating ISPs' traffic management practices by proposing two new rules that would bar carriers from blocking or degrading lawful Web traffic and that would force carriers to be more open about their traffic management practices. Any hope of ever enforcing those rules came to a screeching halt this past April, however, when the Washington, D.C., appeals court said that the FCC did not have the authority to regulate ISP network management under its current legal framework.
This left the FCC with three options: It could leave ISPs' traffic management practices essentially unregulated; it could go to Congress and ask for a new law that explicitly gave the FCC the duty to regulate ISPs' behavior; or it could reclassify ISPs as common carriers and apply the same rules to ISPs that it applies to phone companies. Genachowski has decided to go with the third option, although he insists that ISPs should not be subjected to all the rules and regulations that apply to telephone companies.
Now that we understand how the FCC got here, we can look at what regulations Genachowski wants to apply to the ISPs:
* Section 201: This section essentially requires carriers to provide access to rival carriers in order to provide through routes. It also lets the FCC establish appropriate rates that the incumbent carriers can charge their rivals for access to the network. The goal here is to give incumbent carriers proper compensation for access to their networks without letting them charge prohibitively high prices that would prevent rivals from having through routes