Esbin on What the FCC is Up Against with Title II Reclassification

My colleague Barbara Esbin, Director of PFF’s Center for Communications and Competition Policy, was recently asked to participate in a conference call to discuss the D.C. Circuit’s recent decision in Comcast v. FCC and its impact on the FCC’s Open Internet (“Net neutrality”) rulemaking proceeding. Yesterday, over at the PFF Blog, she published her working notes and shows exactly what the FCC is up against as it embarks on its radical plan to reclassify the Internet as a crusty old “Title II” common carrier service. Esbin argues:

To impose Title II regulations on the Internet, the FCC would need to establish a rational evidentiary and sound legal basis to bring Internet service providers under its Title II authority through an act of regulatory “reclassification.”

To accomplish this procedurally, the FCC will have to:

1. Adopt either a Notice of Inquiry or Notice of Proposed Rule Making proposing that the FCC reverse four of its own prior orders directly on point, one of which has been upheld by the U.S. Supreme Court in NCTA v. Brand X, so that it could declare Internet services to be “telecommunications services.”
2. Receive public comment on its proposal creating a record that on balance supports its proposed reclassification.
3. Adopt either a Declaratory Ruling or a Report and Order providing a reasoned factual and legal basis for changing the classification and regulatory treatment for Internet services.

To survive a challenge in court, the FCC will have to:

1. Demonstrate why reclassification of Internet access service from an “information service” to a “telecommunications service” is not arbitrary and capricious.
2. Demonstrate that it has Congressional authority to regulate the provision of Internet access service as a common carrier offering;
3. Demonstrate that its action does not infringe the constitutional rights of Internet service providers.

“Reclassifying” broadband Internet access service, in whole or in part, as a telecommunications service will not be easy and the FCC would face many hurdles in gaining judicial acceptance of such a move.

Finish reading the entire thing here.  It’s essential reading if you want to understand why the reclassification fight will become Regulatory World War III and be tied up in the courts for years to come.

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