Editorial: Take II

The FCC has done it, reclassifying broadband under Title II, much to the chagrin of Internet service providers and the delight of activists who have been pushing the agency to do it for years. It’s unclear whether it’s a “deathblow to innovation and investment,” or the “salvation of freedom and openness on the Internet.” Of course there’s a third possibility, that it is neither of those extremes.

This move will undoubtedly lead to months or years of legal challenges. But the FCC can hardly order breakfast without getting a heaping side order of litigation. It goes with the territory and has never stopped the FCC before.

The commission is attempting to protect its new rules by doubling down on the regulatory underpinnings, hoping its general conduct standard against anything that will hurt edge providers or surfers will stand by itself under existing authority, if the court rejects the Title II approach. This may or may not work.

What’s even harder to predict is how the FCC will finesse its rules without regulating content—if not before the fact through bright line rules, then after the fact via a case-by-case complaint process.

Congress may yet weigh in on what it thinks of the commission’s authority to regulate the Internet. But in the meantime, we don’t expect ISPs will be the target of a wave of complaints about their conduct. As is pretty much always the case, the big winners will likely be communications attorneys.