Over the last month, various members of the FCC and others have publicly promoted the agency’s proposal to change the classification of broadband Internet access service. In a nutshell, the FCC wants to take broadband Internet access service out of the competitive-oriented Title I “information service” category where it has resided for more than a decade and put it into the old-style, monopoly phone-oriented Title II “telecommunications service” category. No need to worry about those heavier Title II regulations deterring investment, innovation and jobs, say these folks, because the agency will only apply what it thinks are the six most essential sections of Title II and it will “forbear” from all the rest.
As more details on the legal theories girding this proposal come out, we’ve noticed a rather curious contradiction in the FCC’s proposal. On one hand, when the FCC explains why it can jettison over a decade of bi-partisan deregulatory precedent and impose Title II common carrier regulations on the Internet, the agency claims that the legal threshold for “reclassification” is quite low. Citing the Supreme Court’s decision in FCC v. Fox Television Stations, the FCC says it need not show any major change in circumstances or “market shift;” it only needs to take a “fresh look” at Internet technology and the broadband market and then “simply provide a reasoned justification” for its decision. (As you might expect, we and others have a very different view of Fox)
On the other hand, when explaining why nobody should be concerned that the FCC will later rely on this same permissive interpretation of Fox to simply “unforbear” and impose some or all of the remaining Title II regulations on broadband Internet access, the agency says that reversing its forbearance precedent would involve a “painstaking process” requiring it “to compile substantial record evidence that the circumstances it previously identified as supporting forbearance had changed.”
Yup, you heard that right – the FCC is saying that, under Fox, overturning precedent is quite easy when it suits the FCC’s net neutrality agenda (you just need a “fresh look”), but it’s suddenly very hard when doing so would raise concerns about the legitimacy of that same agenda (it requires a “painstaking process”). If this sounds like the FCC wants to have its cake and eat it too, don’t worry, the FCC has an answer for that as well. It claims that in the 17 years since Congress gave it forbearance authority, it has never reversed a forbearance decision.
But reversing a whole slew of broadband forbearance decisions is exactly what the FCC’s National Broadband Plan contemplates. In response to a group of carriers that are urging the FCC to “revisit the broadband forbearance relief” granted to AT&T, Verizon, Qwest and others just a few years ago for our optical and packet-switched broadband transmission services, the National Broadband Plan recommends re-examining “the FCC’s decisions to deregulate aspects of these services.” In fact, the FCC has already sought comment on a framework for doing just that in its special access rulemaking.
If the FCC were really serious about forbearance being a one-way street, it would never have cast doubt on these forbearance decisions in the National Broadband Plan and it would immediately terminate the special access proceeding with respect to optical and packet-switched broadband transmission services so that the communications industry doesn’t need to waste time debating an outcome – “unforbearance” – that the FCC apparently has no intention of pursuing. . . . Unless, of course, the FCC really thinks forbearance isn’t so permanent after all.