FCC Faces Hurdle of Brand X Ruling


"FCC Faces Hurdle of Brand X Ruling (National Law Journal May 31, 2010)" takes the position that the U.S. Federal Communications Commission's National Broadband Plan and "Net Neutrality" policy goal, which suffered a setback as a result of April's Comcast Corp. v. FCC D.C. Circuit Court decision, will be impeded by the FCC's responding announcement to reclassify broadband service as common carrier-regulated "Telecommunications Service" under the 1996 Telecommunications Act, as opposed to the substantially unregulated "Information Service" classification that the FCC has until now applied to broadband, and which the U.S. Supreme Court adopted in its 2005 Brand X decision. A reasonable Net Neutrality policy, one that preserves the Internet's low barriers to entry while maintaining investment incentives for network backbone hosts, argues the article, is most likely to be achieved within the existing legal and regulatory paradigm applicable to broadband service.

Finally, the article argues that the broadband dilemma provides a moment of clarity on the need for Congress to adopt a technology- and platform-neutral electronic communications law, an opportunity missed by the 1996 Act. CNET reported on May 28, after this article went to press, that 282 members of Congress, from both sides of the aisle, agree, have urged the FCC in a series of letters not to reclassify broadband service and recognized the need for Congress to address the issue with comprehensive legislative reform. See http://news.cnet.com/8301-30686_3-20006332-266.html?tag=mncol.

For background information on this issue, see "U.S. Communications Law and Transactions" (Winter 2010), pp. 41-51, available at http://www.kurtinlaw.com/articles-whitepapers.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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