Reliability Rather Than Rainbows: Why Strong Title II Remains the Best Option For an Open Internet

[Commentary] The Federal Communications Commission published a blog post describing the “rainbow of policy and legal options” available to protect the open Internet, contrasting them to other “monochromatic options.” While I applaud the FCC moving in the right direction on policy, I hope the FCC does not exhaust itself chasing the policy rainbow when the right thing -- drab and monochromatic as it might be -- continues to stare them in the face.

On the positive side, the FCC’s blog post reflects an understanding that the FCC’s original proposal from May, permitting paid prioritization (aka “Fast Lanes”) under a ‘commercial reasonableness’ standard will not do the job of protecting the open Internet. The political reality has also shifted, thanks to a tremendous public outcry in favor of recognizing that broadband is the essential service of the 21st Century, a fundamental service that everyone increasingly relies on and therefore -- to use the legal expression -- is affected with the public interest. FCC Chairman Tom Wheeler’s own writing on the network compact likewise recognizes this fundamental principle, which has made his resistance to embracing Title II and insistence on exhausting all other option all the more frustrating.