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.”