Law Professors Defend History of Title II for Broadband

Last Friday, advocates for open Internet protections and universal service for broadband got some high-profile help in the form of a letter to FCC Chairman Genachowski from three law professors, all experts on telecommunications law and open Internet rules.

Tim Wu (known for first popularizing the concept of Network Neutrality), Susan Crawford (former White House advisor on telecommunications policy), and Marvin Ammori (lead attorney and representative of intervenors in the FCC’s Comcast proceeding and court appeal), called on the FCC to reclassify broadband transmission service as a Title II telecommunications service. Their letter lays out the history of the FCC’s treatment of Internet access services, in an attempt to sift through the confusion and masquerades being spread by the incumbents and their hired guns. Their analysis identifies that reclassification is not only consistent with Commission precedent and the intent of Congress – it’s also the right policy for the present and future of broadband communications services.

The FCC has two choices – move ahead under the current legal framework (Title I), which the FCC's General Counsel has said carries risks for universal service, Network Neutrality and other issues; or reclassify the basic transmission of broadband Internet access service under Title II. Either option will bring litigation, but reclassification will bring one big fight that the FCC can win, whereas Title I will bring a lot of big fights, many of which the FCC would lose.

Reclassification is also the right policy. It is not an opening to “regulate the Internet” – in fact, it's better than moving forward with ancillary authority, because it draws a line between transmission services and enhanced services, consistent with the history of FCC policy.

As law professors Wu, Crawford and Ammori indicate, reclassification would restore the framework that the Commission designed for network communications, and the framework that Congress and the courts have blessed.

People + Policy

= Positive Change for the Public Good

people + policy = Positive Change for the Public Good