FCC's Achilles Heel on Broadband Third Way Approach

The Achilles heel of the FCC's announced "Third Way Legal Approach" for regulating the Internet is that it is simply not credible.

Incredible claim #1: The third way "does not involve regulating the Internet."

• At core the FCC is baldly attempting to redefine the Internet, because the real and settled definition of the Internet (that has been in the law for fifteen years, that the FCC has long and consistently used, and that the Supreme Court has used) does not fit the FCC's adopted FreePress/Google political narrative.
• Moreover, if everyone knows that the Internet suite of protocols is TCP/IP (Transmission Control Protocol/Internet Protocol)... and the FCC third way legal approach specifically claims: "The provisions of Title II would apply to the transmission component of broadband access service..." how can the FCC credibly argue that regulating the essence of the Internet -- TCP/IP Internet transmission protocols -- is not regulating the Internet?
• It appears that the FCC believes the Congress, the Courts and the media are clueless and incapable of knowing what the Internet has always been and still is.

Incredible claim #2: The third way is a "light touch" regulatory approach.

• The third way is a very heavy regulatory hand, the exact opposite of "light touch" regulation, according to Clinton Adminstration FCC Chairman Bill Kennard in a 1999 public speech to other regulators: 
  • "It is easy to say that government should write a regulation, to say that as a broad statement of principle that a cable operator shall not discriminate against unaffiliated Internet service providers on the cable platform. It is quite another thing to write that rule, to make it real and then to enforce it. You have to define what discrimination means. You have to define the terms and conditions of access. You have issues of pricing that inevitably get drawn into these issues of nondiscrimination. You have to coalesce around a pricing model that makes sense so that you can ensure nondiscrimination. And then once you write all these rules, you have to have a means to enforce them in a meaningful way. I have been there. I have been there on the telephone side and it is more than a notion. So, if we have the hope of facilitating a market-based solution here, we should do it, because the alternative is to go to the telephone world, a world that we are trying to deregulate and just pick up this whole morass of regulation and dump it wholesale on the cable pipe. That is not good for America."

Incredible claim #3: The third way would create a "solid legal foundation."   

• At core, how could it possibly be a "solid legal foundation" when the FCC is:
  • Redefining the legal definition of the Internet in direct contradiction to the law and Supreme Court -- without any authority to do so?
  • Imposing Title II on Internet traffic/transmissions for the first time in 30 years in direct contradiction to several FCC precedents? 
  • Inconsistently arguing for the strictest Title II regulation of sections 201 and 202 because of insufficient competition, while simultaneously arguing there is sufficient competition to warrant mass regulatory forbearance from Title II provisions like section 251 that closely mimic sections 201 and 202.
• How could it be a "solid legal foundation" when it depends on a Supreme Court dissent, not opinion, and on a non-Title II-related Supreme Court Fox vs. FCC opinion on indecency/free speech, which has near zero legal or logical relevance to common carriage regulation?         
• How could it be such a clear "solid legal foundation when key legal scholars whom the FCC respects, strongly disagree with the FCC and have publicly explained why the FCC is not on solid legal ground. See:
  • Former Clinton Administration Solicitor General Seth P. Waxman's legal analysis here;
  • Former FCC Associate Bureau Chief Barbara Esbin's legal analysis here; and 
  • Former Carter Administration, Assistant to the Solicitor General, H. Bartow Farr's III, First Amendment analysis here.

In short, the FCC is imperiling its professional credibility as a regulator by making incredible claims that fair-minded people can see are patently false.

Not only is the "third way legal approach" not credible as explained above, it is also:

• A lose-lose gamble that will predictably be thrown out by the court; and
• A predictable disaster waiting to happen.