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FCC Title II Internet Regulation: “Believe it or not!”

With due credit toRipley's Believe it or Not!, so much odd and bizarre is happening in Washington in the "name" of “Title II utility regulation of the Internet ” that the topic calls for its own collection of: Believe it or Not!®oddities.

In seeking comment for what is the best FCC legal authority to enforce net neutrality, Section 706, Title II, etc., the FCC has completely ignored the most obvious solution – asking Congress -- the source of all its existing authority -- for the new authority the FCC believes it needs!

Net neutrality proponents urge the FCC to reclassify the Internet to be a Title II utility, for the purpose of rate regulating a permanent zero price for downstream Internet traffic, all the while claiming no one supports any rate regulation!

A 2011 Executive Order requires regulatory agencies to use the “least burdensome tools for achieving regulatory ends” but in 2014 the FCC is on path to use the most burdensome tool possible -- Title II!

The FCC Chairman suggests that changing the no-FCC permission, light regulatory regime of the Internet, to a Title II, “FCC-may-I?” heavy regulatory, regime will not affect, slow, or discourage broadband deployment or Internet infrastructure investment!

The FCC’s entire argument for mitigating Title II’s negative effects via broad FCC forbearance still has no coherent legal forbearance theory that can survive court challenge!

To justify imposing Title II regulation, the FCC must prove there is not enough competition to protect consumers, while simultaneously justifying forbearance from Title II regulation because there is enough competition to protect consumers!

After courts overturned the FCC’s net neutrality rules twice, and the second court mercifully provided a Section 706 roadmap to avoid another embarrassing “strike three” in court, the FCC is planning to reject the court’s kind help!

The FCC claims to be focused on protecting consumers, but the Title II path they are choosing is most likely to harm consumers with higher prices, taxes and fees; slower Internet; and less broadband deployment and investment! 

In pursuing utility Title II regulation of the Internet, the exact opposite of Congress’ current Internet policy in law – to preserve the competitive free market Internet “unfettered by Federal or State regulation” -- the FCC unwittingly is making the best case possible for why communications law, and the FCC itself, must be modernized soonest!  

Strange but true.

“Believe it or Not!®”