WASHINGTON — The plan from the chairman of the Federal Communications Commission to ensure an open and neutral Internet drew mixed reviews on Wednesday from consumer advocates and Internet service providers, presenting the agency with an uncertain way forward as it considers new broadband regulation.
The proposal, by Julius Genachowski, would forbid both wired and wireless Internet service providers from blocking lawful content. It would also require broadband Internet service providers to give consumers basic information about how the companies manage their networks and would forbid discrimination in transmitting lawful content.
But it relies in part on a novel legal interpretation of how much authority the agency has over the Internet, one that some critics think is almost certain to invite Congressional opposition and court challenges. And it drew lukewarm support from one of the most important voices in the debate, Michael J. Copps, an F.C.C. commissioner, who has advocated stricter regulation and whose vote the chairman will need in order to get an order approved by a majority vote of the five-member commission.
“It’s no secret that I am looking for the strongest protections we can get to preserve an open Internet, built on the most secure legal foundation, so we don’t find ourselves in court every other month,” Mr. Copps said. Noting that this is only the beginning of discussion about the proposal, which is likely to change before it becomes final, Mr. Copps added: “At issue is who will control access to the online experiences of consumers — consumers themselves or Big Phone and Big Cable gatekeepers.”
The proposal received strong support from prominent venture capitalists in Silicon Valley, and there was both praise and complaint among companies that would be affected. The wireless phone company Sprint said that it “commends the F.C.C. for the careful and deliberate approach it has taken on this issue.”
Verizon, the nation’s largest wireless phone company, was less impressed. Thomas J. Tauke, a Verizon executive vice president said, “The F.C.C.’s authority to act in this area is uncertain, and Congress has indicated a strong interest in addressing this issue.” Mr. Tauke said any new rules should be temporary, which would “encourage Congressional action, while showing appropriate deference to Congress.”
In aiming to enforce the nondiscrimination and no-blocking rules, which together make up a concept known as net neutrality, Mr. Genachowski is wading back into an area where a federal appeals court said in April that the agency has limited authority.
Because broadband service is classified as a loosely regulated information service, the F.C.C. had to prove that any regulation of it supported an expressly designated power of the agency, something that the court said the F.C.C. had failed to do.
Now, Mr. Genachowski thinks he has found a way around the court’s ruling, according to a senior F.C.C. official, who spoke on the condition of anonymity because the chairman’s proposal was subject to change.
The official said that the proposal relied in part on what is known as the F.C.C.’s Section 706 authority, which requires that the commission report to Congress each year whether broadband service is being deployed to all Americans in a reasonable and timely manner, and if not, to take steps to make it so.
In July, after the commission issued its National Broadband Plan, it cited that report’s finding that roughly 14 million Americans do not have broadband Internet service as evidence that broadband is not being adequately deployed.
Therefore, the official said, it is within the F.C.C.’s power to take steps that will promote the spread of broadband. Putting so-called net neutrality rules in place would help ensure that content providers can reach Internet users, which will increase the output of Internet companies, thereby increasing demand for Internet services and increasing deployment of broadband service.
There are problems with that theory, said Aparna Sridhar, policy counsel for Free Press, a nonprofit group that supports net neutrality rules. Among them, the F.C.C. has to make a Section 706 report to Congress each year. That need for annual reconsideration might not provide the certainty that Internet companies need to encourage them to commit the capital to produce new innovations, she said.
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