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Title II is no "solid legal foundation" for broadband

A common tactic of net neutrality proponents is to assert their desired outcome repeatedly in hopes that it becomes conventional wisdom. Now the Open Internet Coalition asserts that Title II for broadband would be a "solid legal foundation" for the FCC, while FreePress asserts broadband Title II would provide the FCC a "sounder legal basis" for its broadband agenda. 

  • Fortunately, under the rule-of-law, legal authority simply cannot be asserted or deemed "solid" or "sound" by political acclamation, it ultimately must be proven and affirmed as solid and sound by a full court process (in the absence of Congress passing a new law.)

Surely the FCC understands that the courts ultimately will decide if any legal analysis defending Title II broadband is solid/sound, especially given:

  • The recent D.C. Circuit Comcast decision (which the FCC is not challenging);
  • Broadband has never been classified as Title II; and 
  • The FCC is hardly a disinterested observer in trying to determine the boundaries of its own authority.   

In the Open Internet reply comments, there are many substantive legal analyses strongly indicating that any FCC decision deeming broadband to be Title II would not be on a solid/sound legal foundation. For just three of the most notable analyses see:

NetCompetition Press Release on FCC open Internet field hearing

FOR IMMEDIATE RELEASE                                                        April 27, 2010                                                                                          Contact:  Scott Cleland 703-217-2407


Scott Cleland, Chairman, Releases Statement Regarding FCC Open Internet Field Hearing in Seattle


NYT's fact-challenged editorial for FCC's public option

The New York Times lead editorial today, which advocates for the FCC public option for broadband, is embarrassingly fact-challenged.

First, it says that the D.C. Circuit Court decision "puts at risk big chunks of the FCC's strategy" for broadband, in direct contradiction to the FCC Chairman's testimony before the Senate just last week, where he said the FCC has the authority to implement the NBP.

Second, it says "the odds of a rational debate on the issues are slim." Obviously the NYT has not reviewed any of the literally thousands of pages of "rational" economic, investment, network management, jobs, innovation filings and comments that have been filed on the Open Internet NPRM and the NBP. It appears that the NYT Editorial board characterizes positions, analysis, arguments and evidence in disagreement with theirs as inherently irrational.

Third, the NYT editorial asserts the FCC has "indisputable authority" to reclassify broadband as a regulated common carrier. Obviously they have done zero research on this point as there has been a lot written recently about how the FCC does not have the authority to abruptly reverse existing law, policy, and precedent any time there are simply three FCC votes to do so. (See my analysis and PFF Barbara Esbin's analysis.) 

FreePress' Tim Wu: All aboard Amtrak Broadband!

In his op-ed, self-appointed armchair communications historian, and FreePress Chairman Tim Wu, advises that the FCC can find all the regulatory answers it needs for the future of the Internet by going back a century in time. 

  • I kid you not, Chairman Wu's actual policy advice is: "we need to go back to 1910, when Congress passed a law declaring that the telegraph, telephone, and radio were to be treated just like railroads, as 'common carriers.'"

If FreePress' Chairman Wu did not have the ear of some at the FCC, his advice would be laughable. 

  • Does Chairman Wu actually think Congress knew more about the best communications policy when we still used telegraph Morse code and phones had to be connected by an operator by manually connecting wires, than Congress knew about communications policy in 1996? and the FCC knew in 2005? 
    • Apparently Mr. Wu seeks to regulate 21st century Internet Service Providers like 19th century railroads.

For an aspiring communications historian, Chairman Wu apparently has missed a couple of big and embarrassing ironies in his nostalgic "back to the future" regulatory advice to the FCC.

Why FCC's broadband public option is a lose-lose gamble

The FCC would be making a long-shot bet-the-farm gamble, if it decided to mandate the broadband public option i.e. deeming broadband to be a common-carrier-regulated service and regulating the Internet essentially for the first time. 

  • It would be a classic lose lose gamble because:
    • The FCC is very likely to lose in court -- accomplishing nothing, but damaging the hard-built trust, cooperation, and commitment necessary for public-private partnerships to be able to get broadband to all Americans fastest; and
    • Everyone else would lose from the irreparable damage to private broadband investment, innovation, growth, jobs, and America's broadband ranking in the world. 

I.   Lose in Court:

It is a given that the FCC would be sued; and it is very likely that the Appeals Court and/or the Supreme Court would overturn any FCC unilateral assertion of authority to deem broadband a common carrier service.

Confronting Net Neutrality Deceit -- Susan Crawford's NYT Op-ed Grossly Misrepresents the Facts

I have publicly debated Susan Crawford and found her to be intelligent, likable and zealously committed to the FCC broadband "public option," i.e. mandating that broadband become public-utility regulated as a common carrier. 

  • I was disappointed and stunned to read Ms. Crawford's latest assertions in her op-ed in the New York Times today, that totally and unabashedly misrepresented core facts; Ms. Crawford and the New York Times Editorial Board should know better. 

First, Ms. Crawford's characterization of a potential unilateral FCC decision to regulate broadband for the first time -- as simply a "relabeling" of Internet access services -- is blatant mis-representation. 

FCC deeming broadband to be regulated opens a Pandora's Box

Proponents of the FCC asserting new "deeming authority," to "deem" broadband to be a regulated phone service and thus subject to the FCC's existing Title II telephone authority, have not even begun to answer the most fundamental questions of what such a foundational change would mean.

  • Premature characterizations that this nouvelle regulatory "deeming" would somehow be easy, clean, or containable, simply have not thought through the potential chaos, havoc, and uncertainty that such a radical, foundational, and over-reaching regulatory "deeming" would wreak on:
    • Legal/policy precedent, clarity, and stability;
    • Business investment, and innovation -- assumptions, incentives, models and practices;
    • Economic growth, private investment and job creation;
    • Industry financial stability, contracts, and debt covenants; and
    • Trust, cooperation, and respect the FCC needs to fulfill its mission and its National Broadband Plan.
  • Consider the following to be a preliminary, non-exhaustive list of important questions the FCC and others will have to confront, answer and address, before the FCC seriously considers "opening" this potential Pandora's Box of ills.  


Impact of court vacating Comcast net neutrality order --'s press release

FOR IMMEDIATE RELEASE                                                     

April 6, 2010                                                                                          

Contact:  Scott Cleland 703-217-2407



NetCompetition Comments on Impact of D.C. Circuit Vacating FCC Comcast Order

Press Release on new FCC "de-competition policy" -- NetCompetition's FCC NPRM Reply Comments


April 5, 2010

Contact:  Scott Cleland 703-217-2407 Submits Reply Comments on FCC Open Internet NPRM

“A new FCC de-competition policy could take away competition’s benefits from Internet users”


WASHINGTON – Chairman Scott Cleland submitted reply comments to the FCC’s proposed Open Internet NPRM.


Harms of a Potential New FCC De-Competition Policy -- Reply comments to FCC Open Internet NPRM

The FCC's proposed Open Internet Regulations and/or the oft-rumored potential re-classification of broadband as a Title II telephone service effectively would create a new FCC "de-competition policy." (For the one-page PDF submitted to the FCC click here)


A new FCC "de-competition policy" would: