This article originally appeared in the August 2010 issue of INTERNET TELEPHONY.

On June 18, the FCC (News - Alert) released a Notice of Inquiry to review the legal framework for reclassifying broadband Internet service, which would thereby allow the FCC to implement network neutrality rules. The NOI seeks comment on three alternative approaches: (1) continuing to classify broadband Internet access as an integrated offering without a separate telecommunications service component under the FCC’s Title I ancillary authority; (2) classifying broadband access to include a Title II telecom service transmission component, with full common-carrier regulation; and (3) the FCC chairman’s “third way,” which includes classifying broadband Internet access to include a telecommunications transmission component, but forbearing from applying all but the core provisions of Title II similar to the regulatory framework governing commercial mobile radio services.

Under the first proposal, the FCC would continue to rely on Title I ancillary authority to implement broadband policies. Under the second proposal, the FCC seeks input on whether recent legal and policy developments suggest a need to classify Internet connectivity as a fully regulated telecommunications service. Under the third way, the FCC seeks comment on whether it should forbear from applying all provisions of Title II other than the handful of sections that are needed to implement universal service, competition and small business opportunity, and consumer protection policies. 

The primary goals of the third way are to create net neutrality rules prohibiting broadband providers from selectively blocking Web content (including services), to reform the Universal Service Fund, and to enhance consumer protections. While these classification efforts are not directly aimed at over-the-top VoIP and other application providers, any change in how broadband is regulated may impact the rights and obligations of application and transmission providers with respect to how services are carried over broadband facilities.

William B. Wilhelm (News - Alert) is a partner and Jeffrey R. Strenkowski is counsel at the global law firm of Bingham McCutchen LLP (www.bingham.com).