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The FCC’s Authority Over Broadband Access

The FCC’s Authority Over Broadband Access


The Berkman Center for Internet & Society at Harvard University and the Wharton School of the University of Pennsylvania will bring together academics and policy analysts to consider the implications of the recent FCC decision to opt for a "third way" in asserting its jurisdiction to implement policy for broadband service to U.S. homes.

Follow the conversation on Twitter using the hashtag #bbauth.


Continental breakfast available at 8:30 am

9:00 am          Introductions

9:15 am          Session 1: The History and Context of the Debate

  • Moderator: Kevin Werbach, The Wharton School, University of Pennsylvania
  • John Nakahata, Partner, Wiltshire & Grannis; former Chief of Staff, FCC
  • Jessica Rosenworcel, Sr. Counsel, Senate Commerce Committee
  • John Windhausen, Founder, Telopoly; former Sr. Counsel, Senate Commerce Committee

10:45 am        Break

11:00 am        Session 2: The Third Way - What Happens Next?


In March of 2010 the Federal Communications Commission fulfilled its congressional mandate to deliver a National Broadband Plan, and set out broad goals such as delivering affordable next-generation broadband to 100 million households throughout the United States by 2020, and achieving universal availability of broadband at today's high speeds, in part by revising universal service subsidies. The Plan emphasized the benefits of national adoption of broadband, from innovation and entrepreneurship to health, education, and the environment. In April, the Court of Appeals for the D.C. Circuit issued an opinion in the Comcast case that questioned the foundations of legal authority that the FCC has used in the past few years as a basis for exercising jurisdiction over broadband policy. In May, the FCC announced that it would adopt a "third way" in asserting jurisdiction over broadband delivery to the home.

After the D.C. Circuit opinion was announced, three primary approaches presented themselves. First, the FCC could have tried to develop a narrow revision of its authority, tailoring it specifically to the Comcast decision's criticism. It might, for example, continue to assert "ancillary" or Title I jurisdiction, as it has for the past few years, but anchor it in a different specific power in the statute. Second, the FCC could have revisited its original decision to classify home broadband as an "information service" under the 1996 Act, and chosen instead to classify aspects of such services as "telecommunications services" under that Act. Doing so would identify carriage or platform components of broadband service to the home, giving the FCC substantial authority to address interconnection, non-discrimination, and universal service, combined with the power to forebear from any or all of the possible regulatory burdens where it finds sufficient competition so as not to warrant regulation. The third alternative was for the FCC to accept that it does not have authority over home broadband connectivity, and turn to Congress to address this gap.

The May 2010 announcement seems to try to steer a middle course between the first two options. It asserts Title II jurisdiction over the carriage components of broadband, but preemptively and extensively forebears from most regulations that could in principle be enforced under that definition.

The workshop will bring together academics and policy analysts to consider what this third way is, relative to either Title I or Title II, how robust is with respect to the legal challenges that may follow, and how best to understand the costs and benefits of the new approach relative to the known alternatives.


If you have questions about the event, please contact Berkman Center program coordinator Amar Ashar:


Photo: / CC BY-NC 2.0

Download media from this event here.

Past Event
May 27, 2010
9:00 AM - 12:30 PM