Déjà vu All Over Again: Questions and a Few Suggestions on How the FCC Can Lawfully Regulate Internet Access

C. Re-Regulation The FCC reclassification of broadband Internet access from a largely unregulated information service to a significantly regulated telecommunications service has the effect of reversing the Commission's prior decision not to regulate Internet access. The Commission will bear an extraordinarily high burden to prove the lawfulness of its decision, because re-regulation runs counter to prevailing economic and political doctrine supporting less government intervention, particularly in the telecommunications marketplace where technological innovations have the potential to support more competition in some segments even as it can favor market concentration in others. (130) Opponents of network neutrality and other types of muscular FCC regulatory oversight claim that such intervention harms the national interest, generates regulatory uncertainty, reduces incentives for investment, stifles innovation and offers a remedy where no problem exists. (131) While Congress forces the FCC to interpret and apply statutory definitions, such as telecommunications and information service, the Commission unilaterally decided that these classifications are mutually exclusive. (132) Nothing in the Telecommunications Act, or case precedent requires the FCC to establish an absolute dichotomy and shoe horn any existing or new Internet service into one category or the other. (133) In the telecommunications marketplace, ventures embrace converging technologies and markets and offer consumers an inventory of services that fall within the telecommunications service and information service classifications while others combine the two. (134) Even the District of Columbia Circuit, which handled both prior appeals of FCC network neutrality orders, accepts the reality that convergence forecloses a bright line distinction between what the FCC can lawfully regulate and what it cannot: [E]ven if a regulatory regime is not so distinct from common carriage as to render it inconsistent with common carrier status, that hardly means it is so fundamentally common carriage as to render it inconsistent with private carrier status. In other words, common carriage is not all or nothing--there is a gray area in which although a given regulation might be applied to common carriers, the obligations imposed are not common carriage per se." (135) By assuming the obligation to make an either/or determination of regulatory status, the FCC limited itself to binary decision-making when it could no longer avoid having to make the call. (136) It could declare Internet access an information service and abandon statutory authority to regulate, regardless of changed circumstances. Alternatively it could declare Internet access a telecommunications service as it did when initially assigning Digital Subscriber Line access to the telecommunications service category. (137) On grounds that it should avoid creating regulatory asymmetry, the FCC opted to treat all forms of broadband Internet access as information services, including DSL, which it reclassified. (138) Having classified all forms of broadband Internet access as information services, the FCC voluntarily relinquished the option of applying just about all regulatory safeguards, even if it came to realize that self-regulation would not suffice. The FCC received complaints detailing instances where unregulated ISPs appeared to operate in ways that harmed both competitors and consumers. Rather than acknowledge its mistake in eliminating the option of applying any common carrier nondiscrimination requirement, the Commission embarked on a twice-failed strategy of devising regulatory safeguards designed to achieve the same outcomes as common carrier oversight without reclassifying them and expressly regulating under Title II regulations. In Comcast v. FCC, the District of Columbia Circuit rejected the FCC's attempts as unlawful. …