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Document Type

Article

Publication Date

12-2010

Publication Citation

63 Federal Communications Law Journal 91 (2010)

Abstract

A decade of broadband access deregulation has landed the FCC at a legal deadend. After the D.C. Circuit's Comcast decision, the FCC finds itself unable to enforce its "net neutrality" goals. To reassert its jurisdiction over "net neutrality," the FCC proposes to reclassify broadband Internet access as a Title II "telecommunications service" while continuing to forbear from most other facets of common carrier regulation. The FCC's current dilemma results from an unfortunate combination of unverified predictive judgments associating deregulation with investment; overly optimistic assessments of competition in the consumer broadband market; the abandonment of the "bright line" between transmission and content; and elimination of unbundling requirements for broadband services. The FCC needs now to revisit-and revise-the factual, legal and policy judgments that have brought it to the current situation. Reclassification is factually and legally the proper regulatory course, but its benefits would be seriously undermined by broad presumptive forbearance. Last mile broadband Internet access offered by incumbent local exchange carriers and cable companies is unambiguously pure transmission, i.e., telecommunications service. Facilities-based Internet access providers should be required to offer downstream rivals equivalent last-mile broadband access as a wholesale telecommunications service on a nondiscriminatory basis; under this framework, telcos and cable companies could continue offering broadband bundled with content and applications as competitive, non-regulated information services. Given the demonstrated ability of facilities-based carriers to use their control of bottleneck last mile access to discriminate against downstream rivals, there can be no justification for the FCC to forbear from applying most Title II obligations to broadband access providers. Combining these two threads, the authors conclude that by restoring competitors' ability to purchase "basic" broadband access as a platform for their own retail Internet access entry, the FCC has the opportunity to create more competition, with less explicit net neutrality regulation, than by reclassification alone.