The Third Way: FCC attempts strange 'Title 1.5' broadband reclassification

The opposition

Also published prior to this morning's decision, Digital Society policy advocate George Ou reaffirmed his position that any effort to regulate the something-or-rather to which bits and pieces of Title II may apply, is an effort to regulate the Internet. Ou wrote in response to a public letter to the FCC from policy advocates who had advised the Commission to split its hairs such that it could regulate "transport on the Internet" without regulating -- quote-unquote (insert Mike Myers photo here) -- "the Internet."

"This doublespeak is baffling because what else do we call the FCC's proposed actions over the Internet but 'regulation' if they are trying to regulate Internet Service Providers at the application and content level and in the prioritized and enhanced Internet Protocol services market?" wrote Ou. "Whether or not we should favor or oppose Internet regulation is a worthy debate, but to insist that the FCC's proposal doesn't regulate the Internet is misleading."

Again, that was before Genachowski's statement this morning referring to "the longstanding consensus that the FCC should not regulate the Internet." That consensus may be a tip of the hat to Republican FCC Commissioner Robert McDowell. In a letter yesterday to House Energy and Commerce Committee Chairman Henry Waxman (PDF available here), McDowell attempted to forestall Genachowski's move by reminding him how often the FCC had argued in favor of Title I regulation since 1996.

"Subsequent to the Supreme Court upholding the Commission's classification of cable modem service as an information service in its Brand X decision, the Commission without dissent issued a series of orders classifying all broadband services as information services: wireline (2005), powerline (2006), and wireless (2007)," McDowell wrote. "Consistent with the Court's characterization, the Commission made these classifications to catch up to market developments, to treat similar services alike, and to provide certainty to those entities provisioning broadband services, or contemplating doing so. Prior to these rulings, however, such services were never classified as telecommunications services under Title II."

Moments ago, McDowell joined his fellow Republican commissioner, Meredith Baker, in a statement warning of a future of regulatory uncertainty, and implying that the Supreme Court did not imply that the FCC could pick and choose which services it could regulate over and above the authority granted it by Congress.

"Today the Commission embarks on a journey to cross a regulatory Rubicon by classifying Internet access service as traditional telephone service under Title II of the Communications Act. This proposal is disappointing and deeply concerns us. It is neither a light-touch approach, nor a third way," the joint statement reads. "Instead, it is a stark departure from the long-established bipartisan framework for addressing broadband regulation that has led to billions in investment and untold consumer opportunities. It also poses serious ramifications across the globe. After several government investigations, no evidence of systemic failure in the broadband market has been presented to justify this new, more onerous regulatory regime. Additionally, without a specific mandate from Congress, the appellate courts are likely to hand the Commission another stinging rebuke for attempting to shatter the boundaries of its statutory authority. This proposal risks the credibility of our institution: Government agencies simply cannot create new legal powers beyond those granted by Congress."

Also joining opposition is the Information Technology & Innovation Foundation whose president, Robert D. Atkinson, suggested today that the "pick and choose" method is actually a smokescreen for an all-out Title II redeclaration.

"The regulatory system the FCC now seeks to abandon was not established in a reckless or ill-conceived manner. The selection of the 'information services' classification came from a sober reading of the applicable law that has been upheld by the US Supreme Court," Atkinson wrote. "Reclassification is certain to bring about a protracted legal battle that the FCC is unlikely to win. In addition, that battle will create confusion for stakeholders and introduce needless and damaging uncertainty into the market. The Commission is, by its own admission, reacting to its most recent defeat (in the Comcast case) with what amounts to an attempt to change the law under which it operates. This is going too far."