Plans by the FCC to apply limited Title II regulation to broadband services will put edge providers  such as content delivery networks and peering services “at risk of being forced to deconstruct their service offerings no  matter how thoroughly the offerings may be integrated,” warns a policy paper authored by Anna-Maria  Kovacs, a visiting senior policy scholar at the Georgetown University Center for Business and  Public Policy.

Released on Tuesday, the paper bearing the title of Regulatory Uncertainty: the FCC’s Open Internet  Docket follows on remarks delivered by FCC Chairman Tom Wheeler at last week’s Consumer Electronics  Show. Wheeler confirmed in those remarks plans to circulate draft rules under which the FCC would  assess broadband network management practices according to the “just and reasonable” standard used  for Title II common carrier services.

Despite Wheeler’s plan to pursue a lighter approach to Title II under which the FCC would forbear  from applying Title II requirements “that are inappropriate and [wrong] for investments,” Kovacs  argued, “no one will be safe from the FCC’s ability to make private services commercial, force  companies to unbundle their services, and dictate services to fit regulatory definitions rather  than to respond to consumer demands and preferences.” Spotlighting the unintended consequences of  the proposed Title II approach, Kovacs said, “it doesn’t even matter that the FCC has no intention  of extending regulation to the edge” as “the ultimate decision will be up to the courts, after a  lengthy process, with results that may well differ case by case.” Even forbearance would offer  little protection to edge providers and other players subject to Title II, claimed Kovacs, pointing  out that Title II advocates are likely to challenge the FCC’s forbearance decisions in court.

Although Kovacs concluded that the consequence of Title II regulation would be “enormous  uncertainty for the whole [Internet] ecosystem,” Title II advocates that include small ISPs, consumer groups and technology  firms claim that a Title II regulatory track is needed to ensure full and open access to broadband  networks and as a remedy against paid prioritization. Another member of academia, Barbara van  Schweick of the Stanford Center for Internet and Society, has maintained that a Title II regulatory  track provides the best means of addressing concerns outlined by the D.C. Circuit Court in its  January 2014 remand of the FCC’s 2010 Open Internet order. Arguing that Title II’s forbearance  mechanism constitutes “an appropriate tool to refine modern rules and will prevent the FCC from  overburdening broadband providers,”  House  Minority  Leader  Nancy  Pelosi  (D-CA)  advised   Wheeler  in  a  September  letter  that  regulation  of broadband networks under Title II would give the FCC “certainty to protect consumers.”