The Third Way: The Unpacked Director’s Cut

Posted by: Bob Quinn on June 24, 2010 at 11:43 am

The problem with the Open Internet fight generally and the Title II fiasco specifically is that fiction tends to trump facts in the debate.  It’s understandable.  It’s easier sometimes to understand and write about the vague and empty rhetoric than it is to unpack the facts and legal framework that lie at the heart of the dispute.

But, with the FCC proposing, unfortunately, to dip the Internet into the sugar-coated world of Title II regulation – light touch or not – specificity and clarity are really essential to understanding the extent and limits to the regulation that the FCC and particularly its General Counsel are advocating.

So, starting today, and over the coming days, we will do the hard work of unpacking the complex and esoteric legal issues of this debate so you won’t have to.

It’s been said repeatedly that the FCC must examine Title II regulation to put the Open Internet on a “solid legal foundation.”  See here and here.

I will begin our examination by noting that the absence in the Notice of Inquiry (“NOI”) issued last week of that “solid legal foundation” is a very large problem which is compounded by the notion that the FCC might actually attempt to go directly from NOI to Final Order in this proceeding.  

The Commission even put language in last week’s NOI asserting that not only could it skip the NPRM step, it did not have to even issue the NOI in the first place before jumping directly to Title II regulation (a notion I find preposterous in light of the 288 Congressional signatures opposing this approach).  And indeed the General Counsel in his teleconference last Friday before a National Regulatory Research Institute audience reiterated his belief that the Commission could act on the issues included in the Title II NOI without a further public notice.

The most troubling aspect of that declaration is that if the Commission chooses to go down the path of Title II regulation in that manner, it will have done so without ever exposing its legal theory to public scrutiny or engaging in the robust debate on that framework that would put to the test whether this approach provides the “sound legal foundation” that its proponents claim.

Let me be clear, we have spent a bit of time in the last several months examining the possibilities around a Title II framework and believe that this proposal is fraught with legal infirmities and will ultimately end the Hands Off the Internet approach that has been a bi-partisan federal policy since the Internet’s commercial inception.

And after watching last week’s Open Meeting, reading the actual NOI and listening to the NRRI teleconference on Friday, in addition to legal problems, there is also a significant amount of factual confusion about what the world looked like before the Comcast decision, before the Cable Modem and DSL Orders that the Commission released beginning in 2002, as well as the services that NECA tariffs on behalf of rural companies, which somehow appears to be at the heart of the Third Way approach.

We intend to unpack the issue of the true regulatory status quo of broadband prior to the Comcast BitTorrent case, as well as the legal implications of FCC action in this space over the course of the next several days to try to understand exactly what the FCC Chairman and his General Counsel are proposing with respect to the Third Way. We promise to try to make this understandable to everyone and we also promise not to get too deep into the weeds.  With that, tune into the same bat-channel for our next edition of….Third Way: The Unpacked Director’s Cut.

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