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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:

  • 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.

There are also a slew of additional excellent legal analyses in association/company filings that strongly undermine any assertion that the FCC has clear authority to deem broadband to be common carrier regulated for the first time.

The bottom line here is that the FCC would be very hard pressed to claim that any potential legal authority it has to deem broadband to be common carrier regulated rests on a "solid legal foundation," or "sound legal basis," until the D.C. Circuit rules on that specific question. 

Given that the FCC's legal authority is, and will remain, an open question until the D.C. Circuit ultimately rules, the FCC should be exceptionally deliberate in this process. 

  • In the event that the FCC somehow tentatively concludes it believes it has the authority to deem broadband to be Title II, the FCC should indicate that the FCC would stay, and not implement, any such decision until the D.C. Circuit ultimately rules on the question. 

For the FCC to unilaterally deem broadband to be regulated based on questionable legal authority and then try to implement it before the question of legal authority is resolved by the D.C. Circuit, would irresponsibly create a potentially highly destructive double-whipsaw dynamic for both the Nation's broadband economy/investment and the FCC's National Broadband Plan.

  • Simply, the prospect of the FCC reversing longstanding foundational policy... only to be likely re-reversed by the D.C. Circuit months later... would be a predictable and monumental policy disaster -- the worst of all worlds for everyone -- destructive chaos with nothing to show for it.