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No Rush to Judgment on Title II

Surprisingly, the editorial board of The New York Times last week weighed in with its proposed resolution of the Federal Communications Commission’s Open Internet proceeding, which still has several weeks before the window for reply comments is closed. The initial comment round already has generated over 1 million responses, in part from a plea made on HBO’s Last Week Tonight With John Oliver to email responses in.

“President Obama: No Internet Fast Lanes,” published prominently on Aug. 14, reinforces comments made last month by Assistant Secretary of Commerce Lawrence E. Strickling, administrator of the National Telecommunications and Information Administration (NTIA), the agency principally responsible by law for advising the president on tech policy issues.

Speaking in mid-July at the Internet Governance Forum USA conference, Strickling indicated that “the president has made very clear where he expects this debate to end up. He supports net neutrality and an open Internet as does [Commerce] Secretary [Penny] Pritzker.”

But Strickling also noted that the “NTIA, working with other agencies in the U.S. government, is conducting analyses and engaging stakeholders, and we will be carefully reviewing the comments filed in the FCC proceeding.”

Despite this extensive work that still is being undertaken, the Times editorial confidently advances a “better option” — namely, that the FCC “can reclassify broadband Internet service as a telecommunications service, which would allow regulators to prohibit phone and cable companies like Verizon and Comcast from engaging in unjust or unreasonable content.” The FCC “wrongly classified broadband as an information service” rather than as a traditional common carrier service under Title II of the Telecommunications Act of 1996, The Times said. This may leave the impression that President Obama already has reached the same conclusion, which does not seem to be the case at all.

In his remarks, Strickling said: “[W]e know there is a debate about the legal authority of the FCC to regulate in this space, whether it be under Title I or Title II … From our perspective, we want to look at the entire end-to-end delivery of content to consumers and understand where, if anywhere, in that framework there might be issues for consumers.”

These issues suggest that despite the president’s ultimate conclusions already having been articulated — and now that Title II implementation has been endorsed enthusiastically by The New York Times — the considerable ongoing analyses by the Obama administration’s expert advisers and others still represent the sounder approach to policymaking in this complex area.

Stuart N. Brotman teaches at Harvard Law School and serves as a nonresident senior fellow in the Center for Technology Innovation at The Brookings Institution.