The FCC's 'Third Way' Internet Land Grab is Hardly a 'Moderate' Solution

Former Federal Communications Commission (FCC) Commissioner Glen Robinson wrote yesterday about FCC Chairman Julius Genachowski’s proposed “Third Way” solution to Commission Internet regulation – whereby the FCC unilaterally rips the Internet out of its current lightly regulated framework and places it under the antiquated and oppressive Title II telephone regulatory regime.

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Mr. Robinson deems this to be not the “moderate” solution the Chairman – and pro-Net Neutrality zealots – purport it to be. Of course, he is exactly right.

The Hill’s Sara Jerome gets the goods:

“If this new middle way seems moderate, that appearance is an illusion,” writes Glen Robinson, a member of the board of academic advisers at the free-market think tank the Free State Foundation. Robinson served as a commissioner in the ’70s.

Under the “third way” plan, the FCC would seek more power to police broadband service providers and enforce net-neutrality rules. To do that, it would place broadband services under telephone regulations.

But Genachowski promises that the FCC would not hold onto the complete set of rules that govern telephone services. In an effort at moderation, he says the FCC would give up the power to enforce the strictest telephone provisions through a process titled “forbearance.”

Please forgive us if we do not trust a federal agency to forever restrain itself as to what it takes under its authoritative auspices.

Chairman Genachowski may very well mean to limit himself to the narrow “forbearance” parameters he’s described. But his parameters may not be the next Chairman’s parameters.

Once the FCC’s Internet land grab transpires, ALL of Title II’s regulations are applicable to the Internet – not just the ones Chairman Genachowski now chooses.

Which means ALL of Title II’s regulations could be enforced on the Internet – at any moment, at the whim of any Commission. This uncertainty would be devastating for the future of the Internet – a regulatory Sword of Damocles that would never have to fall for it to sever most or all private sector investment.

The stakeholders putting up the hundreds of billions of dollars necessary to maintain and grow the Internet would decrease or cease doing so under these conditions – rightly fearing that their trillion dollar infrastructure could instantaneously be strip mined by a broader Title II application.

Reclassification is therefore the FCC’s Dorian Gray Act – if you want the Internet to always look exactly the same as it does now, make sure investors never know what regulations might hit them.

And remember, Title II reclassification cannot legally happen without Congress first writing law making it so. So the inevitable outcome of Chairman Genachowski’s extralegal “Third Way” would be years and YEARS of lawsuits – filed by people rightly asserting that the Commission does not have the authority.

Which, lest we forget, a unanimous D.C. Circuit Court has already said.

There is nothing “moderate” about the investment-stifling uncertainty Chairman Genachowski’s proposed “Third Way” creates. Therefore, it is NOT a “moderate” solution – by anyone’s reasonable standard.

Let’s instead let Congress do what Congress is supposed to do here – write law that properly defines the (hopefully limited) role the FCC is to play in Internet regulation.

Uncertainty exists naturally in robust abundance – let’s not have the government going out of its way to artificially create more.

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