The latest twist in the net neutrality drama comes from Congressman Henry Waxman, who last week proposed a “hybrid approach” for adopting open Internet rules that calls for reclassifying broadband Internet access as a Title II ‘telecommunications service’ (with forbearance from virtually all of the provisions in that title) plus reliance on Section 706 of the Telecommunications Act of 1996. While perhaps deserving of marks for creativity and effort, sadly this trial balloon is made of lead. In many respects, this “hybrid” would be the worst of all worlds, presenting all the risks of any other Title II reclassification proposal while creating a regulatory framework that is even more rigid than the standards designed for telephone monopolies under the 1934 Act.
For starters, the Waxman proposal fails at the threshold because it wrongly assumes that reclassifying broadband as a Title II “telecommunications service” would survive court scrutiny. As our FCC comments explain, any effort to justify reclassification under Title II must contend with the repeated factual findings by the FCC (and endorsed by the Supreme Court) demonstrating that broadband Internet access is an information service. Especially in light of the consistent factual findings the FCC would have to repudiate and the broadband industry’s substantial reliance on those findings over the last decade, the FCC cannot simply choose a new classification to address any perceived shortcomings of its authority under Section 706.
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