Genachowski had been examining the issue since April, when a U.S. federal appeals court ruled that the FCC couldn't sanction Comcast for blocking Bit Torrent from transmitting traffic over the Internet. Genachowski asked FCC general counsel Austin Schlick for legal guidance and Schlick suggested the "Third Way" approach. Genachowski also appears to have received important backing from Senator John D. Rockefeller and Congressman Henry Waxman, both Democrats, before he announced his Third Way statement Thursday
Schlick reviewed proposals, including one to keep Title I authority to oversee broadband as it generally now is or to reclassify broadband as a telecommunications service. As currently defined, broadband is viewed as an information service and the FCC has little oversight over it. The carriers generally support keeping the Title I classification, while Google, Skype, and public interest groups wanted broadband to come under Title II.
"I have serious reservations about both of these approaches," said Genachowski, adding that Schlick found the third way: "a legal anchor that gives the Commission only the modest authority it needs to foster a world-leading broadband infrastructure for all Americans while definitely avoiding the negative consequences of a full reclassification and broad application of Title II."
Genachowski's Third Way approach will be open for public comment, which is expected to be vigorous on both sides of the issue.
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