Title II: Unwarranted, Unnecessary, Unhelpful

WASHINGTON (Feb. 26, 2015) – In response to today’s FCC vote on the Open Internet Order, Doug Brake, telecommunications policy analyst at the Information Technology and Innovation Foundation (ITIF), releases the following statement.

Today the FCC is scheduled to approve a classification of broadband as a Title II telecommunication service. This is a dramatic and unnecessary change from the light-touch regulatory policy that has seen the Internet flourish since the Clinton administration.

This Title II classification puts a dark cloud of uncertainty over what has otherwise been a bright spot in our economy. It is unclear how these regulations will be implemented and what sections of Title II the Commission can successfully forbear from. Much of what has been settled law will again be up for debate. Furthermore, it is unclear whether the controversial Title II move will survive court challenges or a Republican administration.

This path will also make it much harder to do pro-consumer network management, and is more likely to balkanize the Internet into distinct private networks and specialized services. What we need here are not the “strongest possible” rules, but flexible, balanced guidelines and ongoing oversight to allow good traffic differentiation and prevent practices that are anti-competitive or otherwise legitimately harm the open Internet.

It is particularly troubling to see the Commission applying these rules to mobile networks. Mobile broadband is an incredibly young and vibrant sector facing tremendous prospects for growth. Because of the capacity constraints of mobile, network operators will continue to depend on active traffic management and differentiation. Strict regulations on the treatment of mobile traffic would therefore be a grave mistake.

Much of the popular sentiment behind the political decisions driving the order originate from fundamental misunderstandings about how traffic differentiation would work in practice and what tools are necessary to prevent harm to the Internet ecosystem.

It is unfortunate to see the Commission forging ahead with an Order so fraught with legal challenges and political opposition while Congress is actively looking for a compromise that would put open Internet regulations on firmer footing.