The FCC’s “Third Way” rhetoric is especially interesting to ITIF because the notion that a third way was needed is something ITIF president Rob Atkinson and current Obama advisor Phil Weiser introduced in a 2006 paper. The rhetoric of the third way doesn’t align with the use of a Title II classification, however, because Section 202 has the simplistic “anti-discrimination” construction that’s telephone-specific. Packet-switched networks employ discrimination to do constructive things, so the policy issues are around the sale and transparency of discrimination as a service, not the mere fact of its existence.
The FCC is also usurping the Congressional role and defining its own mandate. See the ITIF statement:
The Federal Communications Commission, the government agency charged by Congress with regulating communications by air and wire, announced today a sweeping new program that goes far beyond its mandate. The FCC’s move is likely to lead to a lengthy and unnecessary legal battle, create needless uncertainty in the market, and detract from the FCC’s important work in implementing the recently unveiled national Broadband Plan. While the FCC is attempting to create a regulatory framework suitable for the ever changing Internet ecosystem, its proposal is tantamount to going duck hunting with a cannon.
This is a story that has become all too familiar. In the recent past, the courts have struck down punitive FCC orders against the Super Bowl “wardrobe malfunction” and on, April 6, an overwrought ruling against cable operator Comcast, who sought to preserve good Internet performance for those of its customers who use Voice over Internet Protocol (VoIP) services such as Skype and Vonage. This most recent example of FCC over-reach is a proposal that would take broadband Internet services out of their present status as lightly-regulated “information services” (Title I) and plunk them into a regulatory system devised for the monopoly telephone networks of the 1930s (Title II).
Read the whole thing.